If you are married and you pass away without a Will or Trust in place, who will inherit your belongings? Most people think it will be their wife or husband. But, your spouse may not inherit your entire estate. So, who will actually receive all of those valuable assets you worked so hard to acquire? The answer depends on a few factors.
1. Title To Your Assets
The first factor to consider is title to the assets. So, is your property titled in your name alone? Jointly with your spouse? Joint with a child or other relative? Knowing how all of your property is titled is important to understanding who will inherit after you die.
Let’s examine how each of these scenarios will play out in California Probate Court.
Example 1 : Bob’s home is titled in joint names with rights of survivorship with his brother, Bill. Bob is married. He lives in the home with his wife and children. When Bob passes away, Bill will inherit the home without probate. This will happen automatically by operation of law.
Example 2 : Bob’s home is titled in joint names with rights of survivorship with his wife. When Bob passes away, his wife will inherit the home without probate. This will happen automatically by operation of law.
Example 3 : Bob’s home is titled in his name alone. At his death, his wife will have to probate the property in order to transfer the property from Bob’s name to the names of his heirs. If Bob has children, his wife will end up inheriting the home with his children.
2. Prenuptial Or Postnuptial Agreement?
Second, the right to inherit property from your spouse can be legally waived in a valid agreement. The agreement can be signed before you get married (called a prenuptial or premarital agreement). Or, it may be in an agreement signed after you get married (a postnuptial agreement). Therefore, if you have either of these types of agreements in place, then at death your spouse may not inherit from your estate.
Example 4 : Bob’s home is titled in his name alone. He has a prenuptial agreement with his wife in which she agreed that she has no interest in the property at his death. When Bob passes away, his wife will not inherit and instead his other heirs at law will inherit the property.
3. Intestacy Laws
Third, California law controls who inherits your assets. A spouse may not inherit the entire estate. Most importantly, marriage does not automatically give you full rights to your spouse’s belongings. Depending on how the person held title to property, the surviving spouse must divide the estate with the deceased spouse’s children, if any, otherwise with the deceased spouse’s parents or siblings.
Example 5 : Bob’s property is titled in his name alone as his sole and separate property. His mother is living. His father has already passed away. Bob is married. Additionally, Bob has no children. Bob’s spouse may not inherit the entire property, but rather only a portion. So, who will inherit the other portion? Bob’s mother.
What Should You Do?
Contact our office to schedule a free consultation if you want your spouse to inherit all of your property. Therefore, by creating an estate plan, you can make sure your wishes are followed. An attorney should review your assets and help you determine the options. Thus, only an attorney can help you make sure that your spouse will be a beneficiary of your estate.
