California law presumes that a surviving spouse should be entitled to a share of their deceased partner’s estate. Under most circumstances, these family allowance protections are intended to ensure that a surviving spouse receives a fair inheritance, especially if the decedent did not write a will or create an estate plan. However, inherent spousal rights can create significant problems for couples who plan to divorce or who wish their individual estate assets to pass to their biological children. Waiver of spousal rights | California Estate Planning Lawyer

When Couples Should Consider Signing a Waiver of Spousal Rights

While most married Californians name their spouse as a beneficiary in their will, trust, or life insurance policy, some couples may wish to exclude their partner from an estate plan for a variety of reasons, including:

Waiving Spousal Rights to a California Estate

Under California state law, surviving spouses have a legal right to assert claims to certain probate assets—even if the deceased person excluded them from their will or planned for shared community property to be passed on to their biological children.

If a couple believes that spousal rights could compromise their individual interests, they may elect to waive these rights. However, waivers are only enforceable if they comply with relevant state law.

A Waiver of Spousal Rights Is Valid Under Section 142 of the California Probate Code

  • The waiver of spousal rights must be in writing.
  • The waiver of spousal rights must be signed by the surviving spouse.

Estate Assets and Spousal Waivers

A waiver of spousal rights is a contractual agreement that negates a surviving spouse’s rights to the following:

  1. Property that would have passed to the surviving spouse through intestate succession
  2. Property that would have passed from the decedent to the surviving spouse by a will executed before the waiver
  3. A homestead
  4. The right to exempt certain properties set aside
  5. Family allowances
  6. The right to set an estate aside from Chapter 6 of the Probate Code
  7. The right to claim community or quasi-community property against the deceased person’s will
  8. The right to petition for inheritance if they were not included in a will
  9. The right to be appointed or to serve as the executor of the deceased person’s estate
  10. An interest in some non-probate property transfers

Challenging the Enforcement of a Waiver of Spousal Rights

A waiver of spousal rights can be challenged under certain circumstances. A probate court may find the waiver invalid or unenforceable if:

  • The deceased spouse did not make a fair and reasonable disclosure of their financial obligations and estate assets prior to the signing of the waiver.
  • The surviving spouse did not retain or consult competent legal counsel before consenting to the waiver.

The California Probate Code also allows the courts to exercise some discretion in choosing whether to enforce a waiver of spousal rights. A judge may find a waiver unenforceable if, for instance, the enforcement of such a waiver could significantly harm the interests and rights of the surviving spouse.

Contact an Experienced California Estate Planning Attorney Today

California couples may choose to relinquish their spousal rights to an estate for a wide range of reasons. However, any waiver of spousal rights could be found unenforceable if the probate court finds it was not executed in good faith. If a waiver is found invalid, the spouse may assert their inheritance rights, even at the expense of the deceased person’s biological children.

Do You Need To Speak With An Estate Planning Attorney?

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Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.