Losing a spouse is hard enough; you shouldn’t also have to worry about navigating the complexities of spousal rights after death if you are the surviving spouse. The lawyers at Keystone Law Group have ample experience protecting and enforcing the inheritance rights of surviving spouses. They are well-equipped to handle any disputes over spousal rights that may arise following the death of a spouse. Call Keystone today to schedule a free consultation.
Rights as a Surviving Spouse Community Property in California After Death Spouses Omitted from a Will or Trust Spouses Who Die Without a Will How Does Divorce Affect Spousal Rights After Death? How Keystone Can Help Surviving SpousesKeystone’s experienced lawyers can work with surviving spouses following the death of a decedent to ensure their spousal rights are upheld. Our attorneys can provide support through every step of the process, from interpreting the decedent’s will or trust to litigating on behalf of the surviving spouse if they need to bring or defend a claim. Call us to learn more about how we can help.
It is crucial for surviving spouses to firmly grasp the concepts of community property and separate property to ensure their spousal rights are not being violated by their deceased spouse’s will or trust. If it seems as though they are, they should consider seeking legal representation to protect their interest in the property.
Surviving spouses can’t afford not to be proactive when it comes to their spousal rights after death. The first step to being proactive is understanding the significance of community property and separate property, as well as the differences between them.
Keystone’s lawyers can help determine whether the decedent’s disposition of property through their will or trust violates the inheritance rights of spouses, and, if needed, litigate on their behalf to help them claim the inheritance to which they’re entitled.
Spouses generally own two types of property: community property and separate property. Community property belongs equally to both spouses and typically consists of assets acquired over the course of a marriage by either spouse or both spouses.
There is also something known as quasi-community property; it is any property acquired by one or both of the spouses while in a state other than California that would be considered community property had it been purchased in the state. Each spouse owns an equal 50% interest in all community property and quasi-community property acquired during the marriage.
It is important to note that community property in California after death does not merely include the assets a married couple collectively owned; it also refers to any debt collectively accumulated.
Separate property, in contrast, refers to any assets a spouse owned prior to marriage and certain property acquired during the marriage by gift or inheritance.
For the laws surrounding community property in California after death to apply, it is required for you to have been in either a marriage or registered domestic partnership with the decedent.
You might have a right to some of the decedent’s property even if you do not fall under one of the two aforementioned categories.
Let’s suppose a person believes they successfully divorced their previous spouse. They are not aware of the fact that their divorce was invalid, and, therefore, enter into another marriage with a new spouse. Because the divorce was never formalized, the person’s previous spouse is their legal spouse, whereas their new partner is their putative spouse.
A putative spouse believes their marriage to be valid and to have been carried out in good faith; however, in actuality, the marriage is not legally valid because the proper statutory requirements for marriage were not met by one or both of the parties.
The property acquired over the course of a putative marriage is considered quasi-marital property, and it is divided between the partners in the same manner community property would have been divided had the marriage been valid. The inheritance rights of putative spouses are largely identical to the inheritance rights of surviving spouses.
Read about the inheritance rights of putative spouses in instances where a decedent dies without a will.
In recent years, the inheritance laws in many states have been amended to address the needs of the growing number of couples who are cohabitating without getting married. While a surviving unmarried partner will not have the same guaranteed right to a decedent’s property as a surviving spouse, they may still have rights to some portion of their deceased partner’s assets, so long as their relationship with the deceased partner met certain conditions. Read on to learn about the protections built into the law for surviving unmarried cohabitating partners.
There are two types of protections available within the law for surviving unmarried cohabitating partners: common law marriage and enforcement of cohabitation agreements (sometimes referred to as “Marvin Actions,” based on a famous case involving the late actor Lee Marvin).
In a common law marriage, couples do not have to officially get married in order to be afforded the community property rights of couples who are legally married; common law couples must meet certain conditions (e.g., the couple must reside together for a specified period of time, the couple must present themselves as married to family and friends), which vary by state, to be provided the same protections as surviving spouses. Several states recognize common law marriage, but California is not one of them.
In California, where common law marriages are not recognized, surviving partners can still file a Marvin Action to claim the inheritance to which they believe they are entitled. In order to successfully assert a Marvin claim, it must be proven that some sort of agreement – regardless of whether it was written, verbal or implied – about the passing on of property existed between the couple. Of course, legally valid written agreements have the best chance in court, but, with help from an experienced attorney, even verbal and implied agreements can be proven.
California law affords certain protections to surviving spouses, children and registered domestic partners who the decedent unintentionally omitted from their will or trust on account of their having created their will or trust before knowing about the existence of their spouse and/or children.
It can be disappointing for surviving spouses to learn of their omission from a decedent’s will or trust. They are likely wondering: Do omitted spouses have the same inheritance rights as surviving spouses who were included in the estate plan? How can omitted spouses assert their inheritance rights? Do omitted spouses have any entitlement to their deceased spouse’s separate property? We discuss the inheritance rights of unintentionally omitted spouses in more detail below.
It’s important to keep in mind that a spouse or child won’t be considered “omitted” in California under the following conditions:
If the surviving spouse waived their inheritance rights through a pre-nuptial agreement or post-nuptial agreement.
Our lawyers are able to help surviving spouses determine whether they qualify as an omitted spouse. If they do, our lawyers can work with omitted spouses to ensure their inheritance rights aren’t being violated by the will or trust, by beneficiaries or other heirs, or by the executor or trustee during administration.
If a decedent had been in a marital relationship when they died, they are not permitted to dispose of more than one-half of the community property through their will or trust. If they do try to dispose of more than their half of the community property, they are, in effect, disposing of property belonging to their surviving spouse. To enforce their rights, the surviving spouse can enforce their ownership rights to the decedent’s property.
If you are a surviving spouse who believes your deceased spouse to be violating your spousal rights by improperly disposing of your half of the community property, it is important to get in touch with an experienced lawyer to learn your best route of action.
As a general rule, anyone with standing (i.e., financial stake in the outcome of a case) can bring a will or trust contest. Even though a surviving spouse may have been omitted from a will or trust, they are still a direct heir of the decedent, and therefore may have standing to challenge the decedent’s will or trust if they believe misconduct (e.g., undue influence, fraud, duress, coercion) could have played a role in the document’s creation or execution.
If you are a surviving spouse who wishes to bring a will or trust contest, a lawyer dealing in wills and trusts can help determine whether doing so would be in your best interest. If it is, they can file a claim on your behalf. They can also help surviving spouses who wish to defend a will or trust contest against other beneficiaries.
In a perfect world, people would update their will or trust, if they had previously executed one, upon entering into a marriage. However, it is common for people to forget this important task; perhaps they assume that the marriage would itself guarantee their spouse and future children an inheritance if they were to die.
This is true, but to an extent. While surviving spouses and sometimes surviving children are generally entitled to an inheritance, they may have to jump through a few hoops to get all the assets they believe they’re owed.
The court generally grants an omitted spouse (i.e., “pretermitted spouse”) the same community property rights the spouse would otherwise have been entitled to under the law; this means that the omitted spouse will be entitled to the decedent’s 50% interest in the community property and quasi-community property. But the decedent’s separate property, which is most likely what the decedent is disposing of through their will or trust, will generally pass to whomever is listed in the will or trust as the beneficiaries of those assets. Of course, omitted spouses have standing to contest the will or trust if they believe the distribution of assets is unfair or not in line with what their deceased spouse’s final wishes.
Let’s suppose that a spouse owned real estate before getting married. They did not transmute the real estate into community property, so it remained their separate property in marriage. When the real estate required improvements, however, the spouse utilized community funds to make them. Later, the spouse dies without having reimbursed the community funds. Is the surviving spouse entitled to a portion of the separate real estate?
The answer would be yes. When community funds are used to make capital improvements to a separate property asset, the community acquires a pro tanto equity interest in the property to the extent that the capital improvements increased the value of the property. The same is true when community funds are used to pay down the principal balance of a mortgage on separate property real estate.
Another instance in which commingling of property might occur is if a business is brought into a marriage by one spouse but continues to operate during the marriage. California law recognizes that, where efforts of community contribute to the success of a business during a marriage, the community should be entitled to an ownership interest in the business, even though the business began as the separate property of one spouse. How would business assets be allocated between separate property and community property? The court has a formula for making this determination. Read more about the Pereira and Van Camp Formulas.
When community property contributions to separate property occur, it can be difficult for surviving spouses to know to what property they are entitled after their spouse dies. A lawyer dealing in will and trust disputes can help determine whether a decedent’s estate plan violates the community property rights or inheritance rights of spouses.
A prenuptial agreement (prenup) or postnuptial agreement (postnup) is signed by parties entering into a marriage and parties who are married, respectively. Prenups and postnups expressly state each party’s property rights within marriage, so if the couple gets divorced or if a spouse dies, there will be no confusion as to how the property should be divided.
As divorce rates rise, prenuptial and postnuptial agreements are becoming increasingly common, especially in community property states, where if a prenup or postnup was never executed, each spouse will automatically be entitled to one-half of the community property in the event of a divorce or death.
Prenups and postnups can be difficult to enforce in certain situations. However, a well-drafted prenup or postnup has the ability to override a state’s community property laws, as well as the decedent’s will or trust.
