In a state that has a community property system, the term “community property” refers to all types of property acquired by either spouse while the spouses are married. Community property belongs equally to both spouses by law.
Note that property a spouse acquired before their marriage or property a spouse acquires by gift or inheritance when married is that spouse’s separate property, and it belongs exclusively to that spouse.
In California, a community property state, when a spouse dies with a will, the surviving spouse has certain rights. Specifically, the surviving spouse is entitled to 50 percent of the community property in the deceased spouse’s estate.
The surviving spouse has this right to 50% of the community property even if the deceased spouse’s will does not mention the surviving spouse and does not bequeath the 50% to their surviving spouse.
The surviving spouse has this right even if the will specifically excludes them from inheritance. This makes sense because half of the deceased spouse’s community property belongs to the surviving spouse.
Eligibility: The length of a marriage does not affect the application of community property laws. Even if a marriage was brief, any property acquired while a couple was married belongs to both members of the couple equally.
What Is Community Property?
The term “community property” refers to personal property, such as jewelry and furniture, and real property, such as land and buildings, bank accounts, retirement accounts, and other assets acquired by either spouse while the spouses are married. In a state that follows community property laws, this property is considered to belong equally to both spouses.
Typically, the assets or income earned by one spouse in a marriage is owned equally by both of them. California is a community property state. Currently, eight other states are also community property states.
Under California law, real or personal property acquired by a spouse while married is regarded as community property. Thus, it belongs equally to both spouses. Real or personal property bought or received by a domestic partner while in a domestic partnership is also community property.
As a general rule, if the money used to purchase the property was earned during a marriage or a domestic partnership, the property is owned by “the community,” which means the spouses or partners.
In California, debt is also considered 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 even if the debt was incurred by a partner using a bank account or credit card only in that person’s name.
As noted above, community property can be distinguished from separate property. Separate property is property one spouse owns before they enter into 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.
It is possible for the separate property to become community property under certain circumstances. A California property lawyer can explain the technicalities.
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 Community Property with the Right of Survivorship Work?
The right of survivorship is commonly associated with the form of real property ownership known as “joint tenancy.” to claim an entire property upon the death of the other joint tenant. This right is a very powerful legal right because it can override other legal considerations, for example, inheritance claims.
Community property with the right of survivorship is now a form of ownership in California, as well. This form of ownership combines the security of owning property as joint tenants with the tax benefits offered by the community property system in California.
Now, in California, spouses and registered domestic partners may take title to their property as community property with the right of survivorship. If they do and one spouse or partner passes away, the property held in this way passes to their spouse or registered domestic partner.
Probate is avoided, and ownership of the entire property passes directly to the surviving spouse or registered domestic partner. This would be the case even if the deceased spouse left no will and the property passed to the surviving spouse under the California law of intestacy.
If a person has questions about this form of property ownership, they should consult with a local California attorney.
Can a Husband Leave His Wife Out of His Will?
California community property inheritance law provides that a husband may omit his wife from his will if he does the following:
- The husband expresses his intent to omit his spouse, and this intent is evident in the will. For example, the will may contain the phrase, ”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 in some way, such as by transferring assets to her outside of the estate, such as through a trust. If this is the case, 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, the surviving spouse may sign a valid waiver, either in a prenuptial agreement or contract, waving her right to receive a distribution through the deceased spouse’s will.
- A surviving wife might waive her right to receive a distribution for several reasons. If a surviving wife believes that her share should go to the spouse’s children, the surviving spouse may choose to waive her share.
Receiving assets outside of the will, such as through a trust, may be desired in that trust documents are not a matter of 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 was 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 Spousal Rights?
In California, community property and spousal rights issues are frequently the subject of lawsuits. A surviving spouse may file a lawsuit in California probate court where a deceased spouse’s will is in probate.
In the lawsuit, that party will ask the judge to rule as to whether that party is owed any interest in the community property of the deceased spouse. In response, the other party may ask the judge to rule that the surviving spouse does not have any right to an interest in any community property. The judge would decide the rights of the surviving spouse and who is entitled to receive an interest in the community property of the deceased spouse.
If a family member wrongfully takes assets that rightly belong 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 taking 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 assert as a defense that they will clearly disinherit the spouse. Another defense would be that the surviving spouse was provided for by a distribution that took place outside of any will and the probate process. For example, the deceased spouse may have established and funded a trust for the surviving spouse.
A surviving spouse may claim defenses against creditors seeking to recover money from the deceased spouse’s community assets. A creditor may not recover money from debts incurred by the deceased spouse outside of the marriage.
Creditors may not pursue the separate income of the deceased spouse or assets purchased with that income. In general, a creditor has only 1 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.
Additional Considerations When Dealing with Community Property
Process/Steps: A surviving spouse may file a lawsuit in probate court if they believe they are owed community property. However, the spouse may be able to resolve a claim to community property by taking steps before filing a lawsuit. Generally, a spouse should identify and gather relevant documents such as documents that might prove acquisition of property after the marriage.
They might communicate with the executor of the estate, and consult with a community property attorney in order to understand your rights and explore options such as mediation before pursuing litigation.
Timelines: There are statutes of limitations for filing claims in probate, both claims for the payments of debts and those that involve other issues, e.g. a claim of the surviving spouse for their share of a community property asset.
It is critically important to consult with an attorney as soon as you think you may have a claim against an estate in probate, because the statute of limitations varies according to the type of claim a person has, and you do not want to lose a claim because you have missed the statute.
Costs/Fees: The cost of filing a claim against an estate in probate include court filing fees, attorney’s fees, appraisal fees, and expert witness fees. These costs can vary depending on how challenging the case is and how much time it takes to resolve it.
Evidence/Documents: The evidence that a surviving spouse might need for a probate claim can include marriage certificates, property deeds, bank statements, financial records, wills, trusts, and any other documents that demonstrate how and when assets were acquired. Testimony from witnesses may also be relevant.
State Variations: Some states other than California have community property laws. They are not all the same. Some states may have different rules regarding the division of assets, management of community property, or the treatment of debts. It is important to consult with an attorney in the relevant state to understand that state’s community property legal system.
Risks/Penalties: It is important to recognize that misrepresenting or concealing assets can have serious legal consequences, including sanctions imposed by a court, financial penalties, and even criminal charges in some situations. Full and honest disclosure of all assets in a probate proceeding is crucial as it is in any legal proceeding.
The Importance of Hiring a Lawyer: A community property issue in a probate court is going to be best handled with the representation of a lawyer who has probate and community property experience. While some simple tasks, such as gathering documents, might be handled independently, probate courts have special rules and legal representation is crucial for understanding complex laws, negotiating settlements, and representing your interests in court.
Situations involving significant assets, disputes, or complex legal issues generally require the assistance of a qualified attorney.
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 want to consult a California family lawyer. A lawyer can help you protect your interests in any community property you may have owned with your deceased spouse and any other rights you may have under a will.
Of course, the best time to consult an inheritance lawyer is before a spouse dies. A lawyer can help spouses and domestic partners prepare an estate plan that ensures that their wishes for their property are realized. The best time to do this is while both spouses are still alive.
