California law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under California law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – REGARDLESS OF THE NUMBER OF CHILDREN.  The surviving spouse is first in the line of intestate succession and is entitled to the entire estate. See Cal. Prob. Code § 240.

Community Property
Like several others, California is a community property state. What this means, barring a written agreement to the contrary, is that the surviving spouse automatically owns half of what either spouse earned during the marriage. Upon one spouse’s death, the surviving spouse is entitled to one-half of the community property.

Omitted Spouses

  • OMITTED SPOUSE.  If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called an omitted spouse.  Under California law, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse the omitted spouse shall receive a share in the decedent’s estate. See Cal. Prob. Code § 21610.

Elective Share or Election Against a Will

As noted above, California is a community property state.  As a result, the surviving spouse does not have the right, like in several other states, to elect between provisions in the will and the share he or she would have received had the decedent, for example, died without a will.  See Cal. Prob. Code § 120.  The surviving spouse will be entitled to one-half of the community property.

Election: In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take one half of the community property.  Under California law, the surviving spouse is entitled to take his or her community share, in addition to bequests made under the will, unless the will states otherwise.

Requirement to File a Known Will

The custodian of a will shall, within 30 days after having knowledge of the death of the testator, file the will to the clerk of the superior court of the county in which the estate of the decedent may be administered, and, mail a copy of the will to the person named in the will as executor.  See Cal. Prob. Code § 8200.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.