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 prenuptial or 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!