Does a Spouse Automatically Inherit Everything?

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 California. 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 husband dies, what is the wife entitled to?

When a spouse dies, the first step in determining what their 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 California 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, because California is a community property state, 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. However, 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 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. 

What happens if a husband dies, and the house is in his 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 strengths and weaknesses of your case.

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?

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. 

However, 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 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. 

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. 

If you lost your spouse and 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.

Have questions? We’re happy to discuss.
Call (424) 320-9444 or email [email protected]

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About RMO, LLP

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

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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