Unique Rights of a Wife or Husband to Inherit from Her or His Spouse in California

California has some unique inheritance law when it comes to the community rights of a wife or husband to inherit from her or his spouse after death. Because California is a community property state, the surviving wife or husband has some advantages in inheritance law in this state.

How do you determine the inheritance rights of a wife or husband to community property?

Community property is generally the property or assets that are acquired during the marriage, except when its source is from a gift or inheritance. Same applies to rents and profits, depending on the time of acquisition and its source, with lots of exceptions and modifications. That being the general rule, our California Probate Code provides that if there is no will, the surviving spouse (here wife as an example) gets all of it or 100% of the community property. Our community property intestacy laws in Ca are intended to protect the rights of the surviving spouse.

But what about the rights of the children of the deceased spouse or children from the first marriage, if the deceased spouse has died?

If all the assets are community property, which is often likely in a long marriage, the rights of the wife who survived the husband, trumps the rights of the children from the first marriage, unless there is a will to the contrary. This is where must of probate or estate litigation occurs in California, especially in Los Angeles, land of second and third marriages.

One person asked this common question: My wife died suddenly and did not leave a will, do I get anything from her estate? The answer to that question depends on the types of assets, character of the assets, time of acquisition of the assets, and the source of acquisition of the assets. You also must look to see if there is a prenuptial agreement or postnuptial agreement that changed those rights. Sometimes, if there is a prenuptial agreement, the prenuptial provides for a certain sum going to the survivor and sometimes, the survivor has waived all rights to the inheritance.

Another person asked: “The kids from the first marriage are pounding on the door asking for their mother’s belongings. What should I do?’ First, you should inform them that their rights are protected by law and that once there is a probate or trust administration, you will give them copies of those documents so they can be assured of their rights. Cooperating at an early stage can often eliminate trust litigation or probate litigation in many cases. You then should arrange to call a probate or estate attorney to evaluate your estate documents and give you a list of what should be done next as the surviving wife or husband.

Remember that your duties as executor or administrator towards the children of the first marriage with respect to their inheritance has three sources: 1) The Will or Trust; 2) The Prenuptial or Postnuptial Agreement and 3) The California Intestacy laws which are set by statute and by the California Probate Code.

Why you should not take inheritance law into your own hands in California, and especially not in Los Angeles?

Taking inheritance law into your own hands often ends you up in Probate Court in an adversarial proceeding. We try to resolve any potential disputes via estate and trust mediation first. Do not make the mistake of thinking you can eliminate others’ rights. A wife, a husband or a child who has lost a spouse or parent, is very likely going to want to protect his or her rights.

Call Sirkin Law Group, Mina Sirkin, Spousal Probate & Estate Attorney in Los Angeles County California to discuss your rights as a wife or a husband to inherit in this State. Call 818.340.4479 or Email our estate attorney at MSirkin@SirkinLaw.com. Our experienced family estate lawyers provide a free online, Zoom or telephone consultation. Get an appointment today.

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