California Will Drafting – Omitting Your Spouse

Previously, I made a post about how to make a will under California law. I also have a video on my Youtube channel about it. One issue that pops up a lot when drafting a will is how to — basically — disinherit someone. This might be done out of spite or might be done intentionally because, for instance, the spouse is independently wealthy or the person making the will has provided for their spouse in some other way already.

The problem that arises is that many people who are writing their will think they can disinherit their spouse by simply leaving them out of the will. In other words, by not mentioning their spouse in the will, their spouse will be disinherited.

This isn’t the case at all in California and it’s because of California Probate Code section 21610 which provides that the assumption is that omitting your spouse from your will was accidental and that, unless proven otherwise, your spouse will get:

  • Half of the decedent’s community property,
  • Half of the decedent’s quasi-community property, and
  • A share of the decedent’s separate property equal to what the spouse would have received under California’s intestate succession scheme if the decedent had died without a will. This share, however, will be capped at half of the decedent’s separate property.

If you do indeed want to leave your spouse nothing for any reason, you should look at section 21611 of the California Probate Code which basically says that the section 21610 presumption will not apply if:

  • The spouse was omitted from the will intentionally and this intention is apparent in the decedent’s will,
  • The spouse waived whatever share they would have been entitled to in the deceased’s estate, or
  • The decedent provided for the spouse by some method outside of a testamentary transfer and that the deceased’s intent that this was in lieu of the share the spouse would otherwise receive of the deceased’s estate is apparent.

As always, this post is meant just to be a small summary of a specific legal topic and my intent is to educate the reader (i.e. you) so that you don’t do something in your own will, for instance, based on a mistaken belief of what the law provides. If you have a more-involved question that I don’t go over here, I encourage you to find a lawyer to discuss it with.

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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