Spousal Inheritance Rivalry

One of the most common battles in California probate revolves around spousal inheritance rivalry. What is spousal inheritance rivalry? A spouse’s competing interest in an estate comes in many different ways explained below:

  1. Competing over who should be an heir.
  2. Conflicts over who should be the executor or administrator.
  3. Competition between two people who both claim to be the spouse of the decedent. (yes, it happens)
  4. Conflicting interests among children as beneficiaries of life insurance, pension, or annuity v. the spouse.
  5. Conflicts about inheritance between a spouse of the decedent and a child of the decedent.
  6. Challenge by a spouse to community assets transferred by the decedent spouse to his children.
  7. Attempts to undo the beneficiary designations of community assets which have excluded decedent’s spouse (wife in most cases).
  8. Fights over whether the decedent intended to exclude his wife from his will or trust.
  9. Disputes about the characterization of a deceased person’s assets as community property v. separate property.
  10. Reviews of prenuptial and post-nuptial agreements for disputed issues regarding the right to act as an executor, or the right to be a beneficiary.

Probate Code 5020-5021 deals with non-probate transfers such as beneficiary designations. A spousal consent is needed when you change the beneficiary designation of a community life insurance or annuity to someone other than the spouse.


Some assets are passed to beneficiaries through various nonprobate devices such as via contractual means like beneficiary forms and beneficiary designations. A transfer to a living trust is also a nonprobate transfer, similar to a beneficiary designation of a life insurance, retirement plans, pay-on-death (POD) accounts, and annuity contracts.

A Community Property asset is an asset that is generally acquired during the marriage (Fam C §760), and each spouse has a one-half interest in them. Therefore, a husband who acquired the asset is required to designate a beneficiary of the asset in the event of his or her death which should be his spouse, when the property is community. California inheritance law requires that as to a community property, the other spouse must also sign a written consent to the designation for the death beneficiary designation to be valid (Prob C §5020; see §4.13), unless federal law preempts state law.  Such things as ERISA plans are governed by Federal law which preempts state law and statutorily requires the nonparticipant spouse of a retirement plan to sign a waiver if the named beneficiary is anyone other than the nonparticipant spouse.

If you don’t remember who you named as a beneficiary of your retirement plan, life insurance policy or other assets that have a beneficiary designation form, now is a good time to make a list and obtain the consent of your spouse, if you are naming someone else as a beneficiary.

Beneficiary lawyers advise clients about designations and their impact. Your beneficiary designation can be reviewed by an attorney who can advise you of your rights, as well as the rights of your spouse. Remember that a signed consent by a spouse as to a beneficiary form = no contest of the beneficiary form later.

Special Beneficiary Designation Problems: There are protective measures for a surviving spouse when a deceased spouse has changed the beneficiary of a community asset. We can help you recover those assets. Talk to us for help with your problem.

Let the expert beneficiary attorneys at Sirkin Law Group assist you with your spousal property rights questions. Call us in Los Angeles County California at 818.340.4479 or email us for a beneficiary designation consultation appointment here: [email protected].

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