The term “community property” refers to personal property (jewelry, furniture, clothes, cars), real property (land and houses) and income (wages, salary, dividends), acquired by either spouse while the spouses are married. In a state that follows community property laws, this property is considered to belong to both spouses. 

Typically, whatever assets or income are earned by one spouse, is owned equally by both of them. California is a community property state. Currently, nine other states are also community property states. The state of Alaska is referred to as an “opt-in” community property state. Spouses are given the option to make separate property, community property. 

Under California law, real or personal property bought or received by a spouse while married is regarded as community property. Real or personal property bought or received by a domestic partner while in a domestic partnership is community property. As a general rule, if money used to purchase property was earned during a marriage or domestic partnership, the property is owned by “the community,” which means the spouses or partners.

In California, debt is also considered to be community property. Each domestic partner or spouse is equally responsible for debts accumulated during the partnership or marriage. This is true even if only one partner incurred the debt. This is also true if the debt was incurred by a partner using a bank account or credit card only in that person’s name. 

Community property can be distinguished from separate property. Separate property is property one spouse owned before a marriage or domestic partnership. Separate property also includes gifts and inheritances made specifically to one spouse or partner, either before or during the marriage or partnership. Money a spouse earns from separate property, such as rental income, is separate property. Property purchased with separate property funds, is considered to be separate property.

How Does a Spouse’s Death Affect Community Property?

When a California spouse dies with a will, the other spouse has surviving spouse rights. This means the surviving spouse is entitled to fifty percent of the community property, or estate. This entitlement exists even if the will does not mention the spouse, or even if the will specifically excludes the spouse from inheritance. 

In many instances, a spouse dies without a will.The surviving spouse has surviving spouse rights. This means that the deceased spouse’s share of the community property automatically goes to the remaining spouse. 

A spouse remains free during their lifetime to transfer any separate property) by will. If a spouse with separate property does intestate (without a will), the separate property passes according to California law of intestacy. The deceased’s spouse’s entire share of separate property goes to the surviving spouse if there are no surviving immediate family members, children, or grandchildren.

If a surviving child or other immediate family exists, they receive one half of the separate property, while the surviving spouse receives the other half. If, when a spouse dies, there are multiple surviving grandchildren or children, those individuals collectively receive two-thirds of the separate property. The surviving spouse receives the remaining one third. 

Can a Husband Leave the Wife Out of Will in California?

California community property inheritance law contains rules about one spouse’s leaving the other spouse out of the will. Under California community property inheritance law, one of the three following requirements must be satisfied for a husband to successfully omit a wife from the husband’s will:

  • The husband intended to omit the spouse, and this intent is evident in the will (e.g.,”I disinherit my spouse.”). The will document must clearly and unambiguously state that the surviving spouse is not to receive anything under the will.
  • The deceased spouse provided for the surviving spouse, by transferring assets to her outside of the estate, such as through a trust. Here, there must have been intent on the part of the husband that this transfer outside of the estate was in lieu of a will distribution. The intent can be demonstrated by remarks or comments the deceased spouse made while alive. 

    • The intent can also be demonstrated by the amount of the out-of-the-estate transfer, or  by other evidence. For instance, if the surviving spouse signed a valid waiver, either by a prenuptial agreement or contract, waving her right to receive a distribution from the will. A surviving spouse might waive her right to receive a distribution for several reasons. If a surviving spouse believes that her share should go to the spouses’ children, the surviving spouse may choose to waive their share. 

Receiving assets outside of the will, such as through a trust, may be desired in that trust documents are not public record. One spouse may find it necessary to leave the other out of the will if the two were estranged before the death of the first spouse. The deceased spouse may have found it necessary to leave the other out of the will if there were another family member the deceased spouse believed needed the money, such as a family member with little to no savings.

Is it Possible to File a Lawsuit for Community Property Issues and Spousal Rights?

In California, community property and spousal rights issues are frequently litigated. Litigation commences when one party files a lawsuit in California probate court. In the lawsuit, that party will ask the judge to rule as to whether that party is owed community property. In response, the other party may ask the judge to rule that the first party is not owed community property. The judge will decide the rights of the surviving spouse, and who deserves community property (and in what amount). 

If a family member wrongfully took proceeds that rightly belonged to a surviving spouse, that spouse can sue the family member for damages, to recover the money. A surviving spouse may also ask the court for an injunction, or order, preventing a family member from receiving community property until its rightful owner is determined. In a community property lawsuit, the person(s) defending against a claim by the surviving spouse may claim as a defense that the will clearly disinherted the spouse, or that the surviving spouse was provided for by an out-of-estate distribution, such as trust money, in lieu of proceeds from the will.

Surviving spouses may be able to assert defenses against creditors seing to recover money from the deceased spouse’s separate debts. A creditor may not recover money from debts incurred by the deceased spouse outside of the marriage. Creditors may not pursue non-community income of the deceased spouse, or assets purchased with that income. In general, a creditor has only one year to bring a lawsuit against a surviving spouse for a recoverable debt. If the creditor waits beyond this year to file the lawsuit, the surviving spouse can ask the court to dismiss the lawsuit as untimely filed.

Should I Hire a California Lawyer for Issues With Community Property?

If you have issues or concerns related to the effect of a spouse’s death on community property, you should consult a property lawyer. A California lawyer near you who is experienced in property law can review the facts of your case, and explain your rights and obligations. The attorney can also represent you at proceedings in court.