California Spousal Rights Against Disinheritance: How the Law Protects Surviving Spouses From Being Completely Disinherited

California’s community property system provides the most fundamental protection against spousal disinheritance: a surviving spouse owns one-half of all community property acquired during the marriage as their own property, not as a gift from the deceased spouse, and no estate plan can take away the surviving spouse’s own community property interest. But California law provides additional protections beyond the community property entitlement that apply even to separate property estates where the decedent could theoretically disinherit the surviving spouse. Understanding the full scope of California’s spousal inheritance protections, when they apply, and what a surviving spouse must do to assert them gives surviving spouses who have been unexpectedly excluded from their deceased partner’s estate plan the complete picture of their legal rights.

The Community Property Foundation

California Family Code Section 760 establishes that all property acquired by a married person during the marriage while domiciled in California is community property. This means that whatever either spouse earns, accumulates, or acquires during the marriage belongs equally to both spouses as community property, regardless of whose name is on the title and regardless of what the estate plan says. An estate plan that purports to leave the entire marital estate to someone other than the surviving spouse can only effectively dispose of the decedent’s one-half community property interest. The surviving spouse’s one-half community interest is already their own property before the estate plan takes effect, and no will or trust provision can transfer it away without the surviving spouse’s informed and documented consent.

The Quasi-Community Property Protection

California also extends community property-like protections to quasi-community property: property acquired by either spouse while domiciled outside California that would have been community property if acquired in California. When spouses who spent part of their marriage in other states retire to California, the wealth accumulated in those other states may be quasi-community property whose treatment at death is governed by California’s quasi-community property rules rather than the rules of the state where it was acquired. California Probate Code Section 101 provides that the surviving spouse’s one-half interest in quasi-community property cannot be defeated by the deceased spouse’s will or trust, just as the community property interest cannot be.

The Right of Election and Its California Equivalent

Many states provide a right of election or elective share that allows a surviving spouse to claim a statutory minimum share of the deceased spouse’s estate regardless of what the estate plan provides. California does not have a traditional elective share statute because the community property system provides more comprehensive protection than elective share statutes typically do. However, California Probate Code Section 21610’s omitted spouse protection, discussed elsewhere in Trust Law Partners’ resources, provides the specific remedy for the most common situation where a surviving spouse is excluded from an estate plan that predates the marriage.

The California Legislature’s Family Code Section 760 establishes California’s community property system. Working with experienced attorneys who advise on legal options for heirs facing disinheritance gives surviving spouses the complete analysis of every property right that California law protects regardless of what the estate plan provides.