Creating an estate plan allows you to determine who will inherit your assets when you pass away. Many people use a Last Will and Testament to specify how their estate will be distributed. In most cases, a married individual leaves some or all their assets to their spouse. However, what if you want to exclude your spouse from your Will entirely? Can you legally disinherit your spouse in California? The Los Angeles attorneys at Schomer Estate & Wealth Advisors discuss why it is not always simple to disinherit a spouse out of your estate plan in California.
How a Last Will and Testament Functions
A Will is a legal document that lets you outline how your estate will be distributed after your death. With few exceptions, you have the ability to distribute your assets as you choose. However, California law includes protections for spouses that can limit your ability to disinherit them. One such protection is the community property system, which impacts how marital assets are divided upon death.
Reasons for Disinheriting a Spouse
While most married individuals provide for their spouse in their estate plan, there are valid reasons why someone might choose to leave their spouse out of their Will. These reasons may include:
- The couple is legally or informally separated.
- The Testator wishes to protect the inheritance of children from a previous marriage.
- The Testator has already arranged for the spouse to inherit assets outside the Will, such as through a trust or beneficiary designation.
California’s Community Property System and Spousal Rights
Unlike some states that follow elective share laws, California operates under a community property system. This means that assets acquired during the marriage are considered jointly owned by both spouses. If a spouse passes away, the surviving spouse is automatically entitled to their half of the community property, regardless of what the deceased spouse’s Will states. Additionally, a spouse may also have a claim to a portion of the deceased spouse’s separate property if they were financially dependent on them. Under California law, a spouse who was not provided for in the Will may be able to claim an “omitted spouse” share unless it can be proven that the omission was intentional.
Prenuptial and Postnuptial Agreements
One way to avoid a spouse’s claim to an estate is through a prenuptial or postnuptial agreement. These agreements can outline how property will be distributed upon death and may include a waiver of spousal inheritance rights. If a valid agreement is in place, a surviving spouse’s claim to the deceased spouse’s estate may be limited to what was agreed upon in the contract.
Spousal Rights and Legal Deadlines
In California, a surviving spouse who believes they are entitled to more than they were left in a Will can contest the distribution. The spouse must file a legal challenge within a specific time frame, typically within 120 days after the probate process begins. If the spouse does not take legal action within this period, they may forfeit their right to claim any additional share of the estate.
What Happens If There Is No Will?
If you pass away and do not have a valid Last Will and Testament in place, the California intestate succession laws apply. In that case, your spouse is entitled to one-half of the community property, one-half of the quasi-community property, and a portion of your separate property, depending on who survives you, as follows:
- One child: Your surviving spouse receives one-half of the separate property.
- Parents but no children: Your surviving spouse receives one-half of the separate property.
- Multiple children: Your surviving spouse is entitled to one-third of the separate property.
Do You Have Additional Questions about the Ability to Disinherit Your Spouse in California?
For more information, please join us for an upcoming FREE seminar. If you have additional questions about the ability to disinherit your spouse in California, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
- Reasons to Incorporate a Living Trust into My California Estate Plan - August 16, 2026
- What You Need to Know about Funding a Trust in California - August 15, 2026
- Estate Planning for Real Estate Owners in California - August 14, 2026
