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Disinheriting a Spouse in California

What is California's Law on Disinheriting a Spouse?

To disinherit someone is to take specific steps to ensure they do not inherit any of your estates after you die. This needs to be properly done to avoid Will Contests. For a son or daughter, for example, you can disinherit them by excluding them from your will or by clearly stating in your will that you do not want him or her to receive any portion of your estate. You can’t disinherit your children by not including them in the will. California Probate Code will give direct inheritance to the children, California will likely assume that you forgot to include your child and give them an equal share of the estate. This can be applied the same with spouses.

Sometimes people wish to disinherit their spouses; it’s not unusual. Often, it’s because their spouse is financially secure on their own and don’t need the inheritance. It can also be because the individual was previously divorced and wants to ensure that certain assets go to their children from the previous marriage and not to their new spouse. Other times, it’s because there’s a dispute but the couple is not divorced.

Can I Write My Spouse Out of My Will?

In the absence of a prenuptial or postnuptial agreement, Californians can’t completely disinherit their spouses due to California’s community property laws. California is one of a handful of states that is a “community property state.” This means that all assets acquired during the course of the marriage are owned equally by both spouses or 50/50. But, you can still distribute half of the marital property any way you want.

Alternatives to California Asset Distribution

If you truly want to see to it that your spouse doesn’t get any of your assets, the only way to do this is to execute a prenuptial or postnuptial agreement. If you’re already married and you don’t have a prenup, you’d have to draw up a postnuptial agreement and get your spouse to agree to keep the assets separate.

In other words, you would each waive your right to the other spouse’s property. For example, you keep your assets and they keep their assets. Otherwise, by law, your current spouse would be legally entitled to 50 percent of the assets acquired during the course of the marriage.

Related: How Do I Revoke a Will?

Estate planning is one of the most complicated and personal decisions you’ll have to make in your lifetime. If you have questions about establishing a will or trust or disinheritance, contact Nguyen Law Group to meet with a Mission Viejo & Rancho Cucamonga estate planning attorney.