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What is the Surviving Spouse Elective Share and Does California Have One?

Law Office of Jonathan D. Alexander, Esq.

Some states have surviving spouse elective share laws.  These laws provide that a certain portion of a married individual’s property and money be given to his spouse upon death regardless of whether the spouse is named in the decedent’s (the spouse who died) will.  The amount of the elective share varies by district and several states contain limitations on the amount of the share. A typical elective share is between one-third and one-half of the total value of the estate.  Some states require that a marriage be a specific duration before the elective share can be claimed and others modify the amount of the elective share based on duration and presence of minor children. 

Does California Have an Elective Share?

California has no such elective share law, but it does provide other protections for surviving spouses. California is a community property state.  The general rule is in community property states is that property acquired by a married couple during the marriage is owned equally by each spouse. 

What if the Spouses have a Prenup or Postnup?

Spouses, of course, may agree to different terms by drafting a prenuptial or postnuptial agreement. If no agreement exists, the surviving spouse is entitled to one-half of the community property and one-half of the quasi-community property (property that physically outside of California but was acquired by the couple during the marriage) regardless of any attempts to modify this through estate planning (e.g. by drafting a will or trust that attempts to convey this property to an individual or entity other than the spouse).

What if the Decedent Dies without a Will?

If a spouse dies intestate (without a will or other estate planning),there are even more protections for a surviving spouse.  In this case, the surviving spouse receives one-half of the community property, one-half of the quasi-community property, and a portion of the decedent’s separate property (e.g., property acquired before marriage). The portion of separate property the surviving spouse is entitled to depends on whether the decedent has surviving children, parents, siblings, or nieces or nephews.  If the decedent is survived by:

  • One child, the surviving spouse receives one-half of the separate property.
  • His parents but no children, the surviving spouse receives one-half of the separate property.
  • Multiple children.  The surviving spouse is entitled to one-third of the separate property.

Where can I go for more Information and to get my own Estate Plan?

As you can see, without a properly drafted, comprehensive estate plan, you will be at the mercy of the State of California.  If you would like to take control, maximize your rights under the law, and create a legacy call the Law Office of Jonathan Alexander today at (949) 334-7823. 

Mr. Alexander has two decades of experience and is ready to help you design a plan that protects you, your family, and your property.  To read more about Mr. Alexander and his background and estate planning philosophy, read his bio linked here.

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