Ask any estate planning attorney and he or she will openly admit that sometimes
their clients ask about disinheriting their spouses – it’s
not uncommon. Why would someone want to do that? Usually, it’s because
their spouse doesn’t want or need their money since they are wealthy,
or it’s because the individual has children from a previous relationship
and they’d rather their children receive the inheritance.
Sometimes though, the individual is in a rocky marriage but for one reason
or another, they’ve decided to stay married. In these cases, they
live with their spouse, but they don’t like them and they’d
prefer to write them out of their will or trust. The question is, “Is
it possible to disinherit a spouse in California?”
California’s Community Property Laws
California is a
community property state, which means that all income, assets and property acquired during
the course of the marriage is community or “marital” property,
with few exceptions. Meaning, all property acquired during the marriage
belongs equally to both spouses, regardless of who earned the money or
whose name is on the title.
A spouse can try to write their husband or wife out of their will, but
the will cannot supersede California’s community property laws.
Under the law, each spouse is entitled to 50 percent of the “marital
or community property” and you cannot give away your spouse’s
share of the community property through your will. You can however, give
your share of the community property to whomever you choose in your will or trust.
How to Disinherit a Spouse
There is a way to disinherit a spouse in California and it’s through a
postnuptial agreement. Through a prenup or a postnup, you and your spouse can agree to waive
your rights to all or some of each other’s assets.
Meaning, you can decide to deviate from California’s community property
laws and decide that certain assets will remain separate. For example,
your prenup can state that your income and real estate holdings will remain
separate. In this case, you can bequeath those assets to whoever you please
because your spouse waived their interest in them.
Interested in executing a prenup or a postnup?
Contact our San Diego divorce and family law firm for a free consultation!