In California, marriage significantly impacts your estate planning rights and obligations. If you have an existing estate plan that does not include provisions for your new spouse—and you intend to keep your premarital assets as your separate property—you may be unaware of both the legal requirements and potential risks involved.
California Law and Spousal Rights
Under California law, when a person marries after executing an estate plan—such as a Will or Trust—the surviving spouse automatically acquires a statutory right to a portion of the estate unless they have waived this right or there is clear evidence of the decedent’s contrary intent. Specifically, the spouse may claim a “claim of elective share”, which can entitle them to a significant part of the estate, regardless of the original estate plan’s directives.
Risk of Unintended Provision for Spouse
If you do not take steps to address this, your intended plan—to exclude your new spouse and keep your premarital assets separate—may be overridden by the law. Your spouse can assert their rights unless:
They knowingly waive their rights via a legally executed waiver; or
You, after marriage, execute a new Will or estate planning document that explicitly acknowledges your marriage and states your intent to exclude or limit your spouse’s interest.
Strategies to Protect Your Assets
To avoid unintended distributions and ensure your estate plan reflects your true intentions, it is crucial to:
Execute a new Will and/or Trust after marriage that clearly states your wishes, including whether or not to provide for your spouse; or
Have your spouse waive their rights through a valid waiver agreement, which must be signed and witnessed properly; or
Next Steps
It is also very important to consult your estate planning attorney to tailor a comprehensive plan that considers California’s laws and your specific goals. This is important because you may wish to:
Amend your estate plan to include some assets (for example, your home) to be inherited by your new spouse;
Create a new plan that also includes a joint trust for any jointly owned assets with your new spouse; and/or
Keep your existing plan but amend it to include provisions for your intent regarding whether or not your new spouse will inherit anything from you.
Failing to update your estate plan following marriage can lead to costly disputes and unintended outcomes, especially in California, where spousal rights are strongly protected by law. To best safeguard your assets and honor your wishes, it is essential to revisit and revise your estate documents after major life changes like marriage. Consulting an experienced estate planning attorney can help ensure your estate plan accurately reflects your current wishes and complies with California law.
If you, a friend, or family member would like our help to set up or update an estate plan after getting married, please contact us directly at (760)448-2220 or contact us on our contact page at https://www.geigerlawoffice.com/contact.cfm.
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