The death of a spouse is one of life’s most emotionally challenging events, and that sudden change can also create financial uncertainty. While many people assume surviving spouses automatically inherit everything, this is not the case in states like California and Texas.
If your deceased spouse dies with a will, their share of community property and their separate property will be distributed according to the terms of that will, with some exceptions. However, if your spouse dies without a will, the distribution of assets will be governed by California’s intestacy and other laws.
When a spouse dies, what is the surviving spouse entitled to?
When a spouse dies, the first step in determining what the surviving spouse is entitled to receive is to determine whether the deceased spouse had a will or trust. The answer to this question will dictate what steps are taken next.
Before exploring spousal entitlements where a spouse dies “testate” (with a will or trust) or “intestate” (without), it’s important to note that a spouse’s ability to take also will depend, in part, on whether the asset is even subject to probate administration. Assets that will not go through the probate estate administration process include:
- Assets in trust
- Property that is owned jointly, such as bank accounts and real estate
- Life insurance proceeds
- Payable-on-death (“POD”) bank and retirement accounts
Trust assets are distributable to trust beneficiaries per its terms. Joint bank accounts and joint tenancy properties go to the surviving joint tenants. Life insurance policies, payable on death bank, investment, and retirement accounts go to the designated beneficiaries (although there are exceptions in states like California and Texas if the assets are community property to which the surviving spouse may have an interest). The important thing to recognize is that distribution of these assets will not be directed by the will or probate.
What if a spouse dies with a will?
If your spouse left a will, then, for the most part, their assets will be distributed according to the terms of that will. However, in a community property state, like California or Texas, all assets acquired during the marriage are presumed to be owned equally by both spouses.
This means that unless you execute a pre-nuptial or post-nuptial agreement to keep your property separate or you otherwise document a gift of your interest in your share of the property to your spouse (via a gift deed, for example), a surviving spouse should be entitled to receive at least 50% of the decedent’s marital property, regardless of what the will says. So, even if your spouse writes you out of the will, you cannot be disinherited if you did not waive your rights to your community property interests through an agreement.
What if a spouse dies without a will?
If your spouse passed away without creating a will, California’s intestate succession laws, which are found in California Probate Code 6400-6455, will direct how their assets will be distributed. What property you receive will depend on the makeup of your spouse’s family and whether other heirs are entitled to inherit some of your spouse’s property.
California intestacy laws outline a specific order in which the deceased’s family members are entitled to inherit property and what portion of the assets each should receive.
- If your deceased spouse died with no surviving children, parents, siblings, nieces, or nephews, you are entitled to inherit everything.
- If your spouse has children that survived them, you will inherit all community property and a portion of your spouse’s separate property (property acquired before the marriage, inheritances, gifts, etc.). The children will receive a share of your spouse’s separate property.
- Similarly, if your spouse died with no children but one or more parents or siblings who survived them, you will inherit all community property and one-half of the separate property, with the remaining half going to the surviving parents or siblings.
Understanding property ownership and entitlements
Property ownership can be a difficult question to navigate when a spouse passes. Spouses have unique rights compared to just any beneficiary, so It’s helpful to understand their full rights as they apply to different circumstances.
What happens if a spouse dies, and the house is in their name?
If your spouse dies and your shared home is only in their name, you may be entitled to stay in the home or receive ownership. An important factor for determining your entitlement is whether your spouse acquired the house before or after you got married, as well as what assets (community or separate) were used to pay for the home, property taxes, etc. However, this area of law is complicated, nuanced and very fact determinative, so you will need to consult with an experienced probate litigation attorney to understand the extent of your property rights.
What if the house was purchased during the marriage?
As a community property state, California law presumes all the property you or your spouse acquire during your marriage to be marital property, regardless of how it is titled. This means that even if your home is only in your deceased spouse’s name, it likely will be considered community property as long as it was purchased after you married using community property funds to purchase and pay any mortgage.
So, even if your spouse left a will, they cannot leave the entire house to someone else because you have the right to at least one-half of the community property interest in that property. And if your spouse died without a will, you will automatically inherit all community property, including the home.
What if the house was purchased before the marriage?
Community property laws do not apply to property that either spouse acquired prior to the marriage. If the house was purchased before you and your spouse got married, or if your spouse received it as a gift or inheritance, it will likely be considered separate property owned solely by your spouse. This means that if your name is not on the title, your spouse can leave the property to anyone they want in their will.
What protections exist for a surviving spouse?
Although there are instances when a surviving spouse does not have specific rights, surviving spouses do have unique protections when their partner passes. For example, when the house is your primary dwelling, you and your spouse’s surviving minor children may be entitled to protection under California’s probate homestead laws, even if your spouse left the property to someone else in their will. Possible homestead protections include temporary possession of the family home, a probate homestead set-aside, and a family allowance.
Temporary possession of the family dwelling
Temporary possession of the family dwelling is immediately granted to surviving spouses through a court order allowing you to remain in control of the family dwelling and household items. The possession order lasts until sixty days after the estate inventory is filed with the probate court, but it can be extended indefinitely by court order.
Probate homestead set-aside
If a surviving spouse is at risk of losing the family home, a homestead set-aside can be put in place to allow the spouse and any children to remain in the home with protection against creditors and other beneficiaries or heirs. A probate homestead set-aside will start when the temporary possession order expires, although it is not guaranteed.
This protection may allow you to remain in the home and can be granted for a certain short-term period or for the remainder of your life. In deciding on the duration of the probate homestead, the court will consider your income and financial needs, as well as the length of the marriage and your age.
The family allowance
If a deceased spouse was the primary provider for the household, the surviving spouse can petition the court for a family allowance. This allowance provides funds from the deceased spouse’s estate for a set period of time to support the surviving spouse as needed. The court may order the allowance to remain in effect through the conclusion of the probate process or for a designated amount of time.
What rights and entitlements does a spouse have beyond property?
A surviving spouse’s rights are not limited to just property or physical assets. They are also entitled to several other assets that belonged to their deceased spouse, including monetary benefits and accounts that were in place before the spouse’s passing.
Some of the additional entitlement that exist for a surviving spouse include:
- Social security benefits – If a decedent received social security benefits before their death, their surviving spouse receives 100% of the worker’s benefit amount if at full retirement age or older, or between 71% and 99% if older than 60 but under full retirement age.
- Survivor benefits from retirement accounts – Similarly, if a deceased spouse received a pension or retirement funds, a surviving spouse can receive the full retirement amounts under the Employee Retirement Income Security Act (ERISA).
- Insurance benefits – If a deceased spouse has a life insurance policy in which the surviving spouse is a beneficiary, then they have a right to those benefits.
To understand the full scope of their rights, a surviving spouse should consult a probate litigation lawyer. A probate litigation attorney has the experience necessary to help navigate a variety of circumstances.
Does a surviving spouse have rights regarding decision-making?
On top of their rights to assets and property, a spouse often has the right to make key decisions surrounding the decedent and their estate. Primary decision-making abilities will typically be outlined in the will or trust document and given to a named executor or trustee. However, if there is no will, or no other personal representative named, these rights are transferred to the spouse.
Typically, a surviving spouse can make decisions regarding the following areas:
- Medical decisions – If an individual lacks capacity and is unable to make important medical decisions for themselves, like stopping dialysis, then the rights transfer over to the spouse.
- Funeral and burial arrangements – A surviving spouse should make funeral and burial arrangements in accordance with the decedent’s wishes expressed before death.
- Access to digital assets and accounts – Digital assets like online bank accounts, cryptocurrency assets, and social media accounts can be managed by the surviving spouse if there are no set terms outlined in the will or trust document.
Legal responsibilities and obligations of a surviving spouse
Although a surviving spouse has several designated rights after their spouse passes, they also have unique responsibilities involved with managing the estate and the assets associated with it.
These responsibilities include:
- Handling the deceased spouse’s estate – In some cases, the surviving spouse may be responsible for managing and settling the decedent’s estate.
- Managing joint debts and obligations – The surviving spouse still has a responsibility to pay any debts that belong to both parties or were acquired during marriage, based on community property laws.
- Filing taxes for the deceased spouse – The surviving spouse is responsible for filing the decedent’s taxes for the tax year in which they passed, as well as paying any outstanding balances.
Secure your spousal entitlements with RMO Lawyers
The loss of a spouse is never easy, and it is even more difficult when you have to navigate the legal processes of probate, but understanding your rights can help relieve some of the stress.
If your spouse passed and you have any questions or concerns about what your rights are, you should immediately contact an experienced probate litigation lawyer to discuss your options. A knowledgeable probate dispute attorney can advise you on your rights and guide you through the probate court process for your best chance to secure a positive outcome.
At RMO Lawyers, our probate attorneys can offer careful guidance and support to help you secure your rightful inheritance. With our combined decades of experience, we take care to understand the unique circumstances of your situation and recommend the best possible path forward.
Schedule a consultation with our team today to learn more about the options available to you and get started on your journey.
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit RMO Lawyers.
