What are the Inheritance Rights of a Surviving Spouse?

A Surviving Spouse deals not only with the grief but also with the legal and financial responsibilities that come with the death of a husband or wife. It is important to be aware that the California Probate Code has protections for them and to assert that protection.

Knowing this is the first step to ensuring that a surviving spouse receives the property that is entitled to them by law. Here are 5 basic things you need to know about the inheritance rights of a surviving spouse.

In California, the surviving spouse is first in the line of succession

If your spouse dies, you are first in the line of inheritance and will assume ownership of the estate. If a decedent was not legally married at the time of death, any biological or legally adopted children, living parents, siblings and relatives are next in line to inherit the estate.

It’s worth noting that in California, the protections for legally married couples also apply to registered domestic partners.

California is a communal property state

This means that married couples have an equal but undivided claim to shared property which includes – real property, cash investments and other liquid assets acquired during the marriage including property acquired prior to and then shared during the marriage.

Community vs Separate Property

Community Property generally includes all property acquired while you were married, while Separate Property means property acquired prior to marriage. There are some exceptions however – gifts and inherited property of one spouse are separate property even if acquired during marriage.

The surviving spouse will inherit half of the Community Property

Many married couples consolidate their assets and don’t have any Separate Property. But in case they do, the surviving spouse will inherit all or a portion of it.

The size of their share of the Separate Property will largely depend on whether or not there are living parents, children, siblings, nieces or nephews. In which case, the surviving spouse will have to share the deceased’s separate property.

Legally separated but not yet divorced

If your spouse suddenly dies while you’re legally separated but not yet divorced – you will not be entitled to their property. It’s best to see an experienced family attorney if you are concerned about this area of the law.

Learn more about California Estate Planning and Inheritance

California has specific guidelines for passing property to loved ones. Consult our team at Crider Law to understand Intestate Succession Laws in California and how they will play into your estate planning.


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