When it comes to inheritance law, California intestate succession rules favor a spouse in inheritance rights. Let us explore how many ways a spouse can inherit in California and under Probate Law California. As always, you must discuss your rights with an inheritance attorney before you make any decisions. California law respects spousal property rights in a petition or via many different inheritance options worthy of exploration.


  1. A spouse can inherit by a will.
  2. A spouse can inherit in a trust.
  3. A spouse can be named as a beneficiary of an account in a bank or financial institution, or brokerage firm.
  4. A spouse who is not named in a will or trust can have community rights in the estate’s property or trust’s property.
  5. A spouse who is not named in a will or trust can claim against the estate or trust as a creditor.
  6. A spouse who is not named as a beneficiary in the will or trust can receive an asset, based on joint tenancy rights.
  7. A spouse who is not named in a will or trust can have contractual rights to assets of the estate, trust or accounts.
  8. A spousal election is a right to obtain assets going to an estate. Community property assets are subject to spousal elections. This assumes the spouse has tried to obtain those assets by other legal means and was not successful for some reason.
  9. A spouse who is omitted from a will or trust may have rights under intestate succession rules both as to community property and as to separate property of the deceased spouse.
  10. A spouse who is pretermitted in a will or trust, meaning that he or she is just not mentioned, can claim a part of the estate from either community or separate property interests of the decedent spouse.
  11. There are some types of accounts that under Federal ERISA law must pass to a spouse, and which require a spouse’s permission for beneficiary changes. These are mostly ERISA pension plans and are treated under Federal law and not California law.
  12. There are also intestate succession rules favoring a spouse, as well as an elective share of a spouse.
    Talk to our attorney to determine if services of an inheritance attorney are right for you.
  13. Inheritance rights of a California Registered Domestic Partner are the same as a spouse.


Even though beneficiary law is not exactly the same as inheritance law, there are some important inheritance regulations that are affected by beneficiary laws in California. What are the sources of California’s beneficiary laws? We first look to the Probate Code California which outlines what happens when you name a person as a beneficiary of an account. California Probate Code 5122 defines an account as: (a) “Account” means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account, and other like arrangement. Multiple party accounts are defined in Probate Code 5132 as:

(a) A joint account.

(b) A P.O.D. account. (POD means pay on death).

(c) A Totten trust account.

These types of accounts have special laws. The Probate Code defines who will receive these types of accounts, but there are also rules regarding spouses or others that made contributions to these accounts, as well as joint accounts.

California Inheritance laws are complex and confusing. They are a mix of intestate succession, testate succession and contractual laws that all come into play when determining who will inherit or get the property after someone dies. Our inheritance attorneys in California can counsel you regarding your rights as to inheritance in California.

What factors impact a spouse’s right to inherit in California?

Generally, a spouse’s right to inherit in California is determined by a list of several major factors:

  1. Inheritance law.
  2. Nature of the property to be inherited. Community v. Separate property.
  3. Contracts affecting the right to inherit such as prenuptial agreements, post-nuptial agreements, waivers, and beneficiary designations all play into the various rights.
  4. Contents of the Will or Trust.
  5. Lack of provisions for a husband or a wife in a living trust and pretermination rules in California.


Generally, legal inheritance law or inheritance laws in California are located in the California Probate Code, but there are some references in the Civil Code and the Code of Civil Procedure that affect inheritance law. You can find the California Codes here. Partition laws, Inheritance of Unclaimed property, Actions to re-establish destroyed land records, and laws of permanent escheats to the State of California all affect inheritances. Learn about inheritance law here.


If there is no will, and the property is community property, the surviving spouse automatically will get one hundred percent of the community property. So, the Probate Code allows a spouse to file a Spousal Property Petition and claim 100% of the community property by a simplified method which skips probate. We can help spouses file a spousal property petition, and our attorneys also represent children or grandchildren in opposing spousal property petitions when the property is not all community. Ask us about the definition of community property and separate property. Read more about spouse and step-children inheritance here.

We can explain the presumptions of fraud or undue influence against a new spouse who inherits which presumptions against inheritance are set forth in California Probate Code Section 21380 for care custodians who marry the person to whom he/she is providing care to as follows: “(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.” Sirkin Law Group’s inheritance attorney can explain the changes in the law as of 2020 set forth above.


Is there an inheritance tax in California?

Estate “Pick-Up” Tax. California does not conform to the federal estate and GST taxes, but instead imposes what is referred to as the estate “pick-up” tax. The estate “pick-up” tax is a tax equal to the maximum federal estate tax credit allowed. The federal estate tax credit was repealed for decedents
dying after 2004, thus the state’s pick-up tax is zero. The California estate “pick-up” tax is administered by the State Controller’s Office.

Generally, gifts and inheritances by a spouse are exempt from inheritance tax under Federal law, as well as California law, so long as the surviving spouse is a US Citizen. There are some special tax rules for noncitizen spouses who inherit. You must consult an inheritance attorney regarding noncitizen spouses before someone dies and after a spouse is deceased.

A common question by a wife regarding her husband’s estate and assets after husband died:

When a husband dies, a wife may question many aspects of inheritance law. We commonly get this as a question: What are my rights in my husband’s estate? Our answer is here: 1. It depends on whether there is a will or not; 2. It depends on the community or separate property character of the assets; 3. It depends on whether or not there is a prenuptial or postnuptial agreement provision relating to the estate; and 4. It depends on whether or not you have a right to set aside a beneficiary designation which was not you. We help clients determine the answers to rights in the above three questions by different methods, one of which is a spousal property petition, another is probate, and the third one is a petition under Probate Codes 5020 and 5021. Talk to us if you are a wife or a husband and if you think you may have rights to your spouse’s estate.


Commingling of community property and separate property create special problems in inheritance rules. Sometimes children tell us that dad bought the home before his marriage to his new wife. One must take into consideration when the property was purchased, and whether there was any mortgage which was paid on the property from community earnings of the two spouses. Talk to our inheritance lawyer about inheritance law in California. We can guide you regarding specific laws pertaining to inheritance.

There are some new laws in California pertaining to the order of priority of presumptions affecting community property v. title rights. Ask us to help represent you as a spouse.

Common question: What does a spouse get when an inheritance is in dispute? What a spouse gets when another spouse dies depends on many different variables such as the will, trust, elections, contract, and default inheritance under the law. We can explore your rights to inherit at a free consultation.

HOW WE CAN HELP YOU? Whether you are a spouse or challenging a spouse’s inheritance, you will benefit from counseling in this area. We commonly serve spouses and other family members in determining inheritance legal problems and resolve them. Let our experienced inheritance attorney counsel you.

Our law firm has handled thousands of probate and estate law matters. If you have issues relating to the rights of a wife (or husband or domestic partner) in the estate inheritance in California or someone who claims to be a spouse or partner, contact Mina Sirkin here.


Contact legal counsel, Mina Sirkin, California Inheritance attorney at 818.340.4479 to discuss the law and inheritance law legal issues in Los Angeles, California. If you are a surviving spouse, can book your free consultation here.

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