If you live in California and have recently lost your spouse, it’s important that you have a basic understanding of California probate and spousal rights. Spousal rights after death in California can be tricky, and it might have a few nuances that are specific to your situation. Here’s a brief overview of the rights of surviving spouses in California:

Community Property Basics

In community property states like California, community property is everything that both parties acquired during the marriage or partnership. The term “property” refers to anything of discernible value and includes:

• Cash
• Checking and savings accounts
• Stocks
• Bonds
• Real estate
• Pensions or 401(k) plans
• Vehicles
• Life insurance policies

Under normal circumstances, spouses share equally in all of the above assets, and surviving spouses will generally inherit them automatically. Of course, there are some circumstances in which this becomes a bit more complicated.

Domestic Partnerships

If you were not married to your partner upon his or her death and didn’t file for a domestic partnership, you may have some legal difficulty when it comes to inheriting community property. California does not afford the same rights to unmarried couples who are not in the domestic partners registry, which is why many couples who choose not to marry might want to create an estate plan to ensure that each of them are taken care of in the event that one of them dies or becomes otherwise incapacitated.

Omitted Spouses

An omitted spouse is a spouse that, for whatever reason,  wasn’t listed in the will or trust of the decedent. Generally speaking, omitted spouses have all of the inheritance rights as anyone else to whom community property applies. The only exceptions to this rule are spouses who:

• The decedent’s will or trust intentionally disinherits
• Are sufficiently cared for through other means, such as life insurance, bank accounts or gifts

Putative Spouses

A putative spouse refers to a spouse whose marriage was not actually valid. For example, if someone believes his or her divorce is finalized and it turns out it wasn’t, his or her remarriage is invalid. Because the surviving spouse believed the marriage was valid, he or she is legally considered a putative spouse. In the case of putative spouses, California courts generally consider any property acquired during the partnership as quasi-marital and applies the normal community property laws.

Prenuptial and Postnuptial Agreements (Prenups and Postnups)

Prenups and postnups are agreements that spouses can enter into either before or after their marriage and, in some instances, they can override California’s community property laws. For a prenup or a postnup to be considered valid, it must:

• Outline the property rights of both parties
• Be in writing and signed by both parties
• Be voluntarily entered into and not deemed unfair or oppressive

In the event that a surviving spouse feels a prenup or postnup is unfair and the court agrees, the court can invalidate the agreement, in which case standard community property rights apply.

The above information is not comprehensive and is for informative purposes only. If you’re a surviving spouse and need help navigating California probate, you should consult a California probate attorney as soon as possible.