California Laws Regarding a Spouse's Inheritance


There are two circumstances in which issues arise for spouses and inheritance. In California, the first issue occurs when a spouse receives an inheritance during her marriage and then later gets divorced. The other inheritance issue arises when one spouse dies. The surviving spouse will be entitled to an inheritance from the decedent's will or according to intestacy laws.

Separate Property

In California, if a spouse receives an inheritance, whether by bequest from a will or by descent through intestate law (when a person dies without a will), that inheritance is considered separate property even when it is acquired during the marriage. Additionally, if that inheritance is used to acquire other property during the marriage, like a vehicle, boat or vacation home, such purchases are also separate property as long as the noninheriting spouse’s name is not included on the deed or title to the property.


Issues can arise with an inheritance when spouses get divorced. In California, a spouse is entitled to maintain sole possession and ownership of any separate property, including an inheritance. However, to maintain its status as separate property, an inheritance cannot be commingled with a marital asset. For example, if an inheritance check is deposited into the spouse's joint bank account, the receiving spouse cannot claim it as separate property during the divorce. Instead, a California court will include the inheritance with all other marital property. As a community property state, California courts divide all marital property equally between the spouses during a divorce.


When a spouse dies, his estate may be distributed to his beneficiaries, including his spouse, in accordance with a will he signed prior to death. California's requirements for a valid will are set forth in the Probate Code. First, a testator, the person making the will, can be no younger than 18 and must be fully mentally competent. The will must be in writing, and the testator must sign it. Two witnesses must be present for the will signing and must also sign, which verifies the testator's identity and competence. To ensure that the will is voluntary and free from undue influence, the witnesses must be impartial, so the spouse cannot serve as a witness, nor can any other individual named as a beneficiary in the will. If all these requirements are met, the spouse and other beneficiaries will be entitled to their bequests when the will is submitted to a California probate court after the testator’s death.

Intestate Succession

The California Probate Code also sets forth a spouse’s inheritance rights when a person dies without a will. The decedent’s property passes by intestate succession in accordance with Division 6, Part 2 of the Code. Under Section 6401(a), a surviving spouse is entitled to half of the community property (an asset acquired during the spouse's marriage), her share of ownership. The decedent’s half share of ownership passes to his children, or to his siblings if he does not have children. If the decedent had any separate property, Section 6401(c) permits a spouse to inherit all of the property if the decedent is not survived by any children, half of the property if the decedent had one child and one-third of the property if there are two or more children. The decedent’s children will inherit the remaining property in equal shares.

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