Can I Disinherit My Spouse?

If you’re reading this, you’re probably wondering: “Is it possible for me to write my spouse out of my will, or can I somehow disinherit them?” This is not an unusual question, especially in Newport Beach and parts of South Orange County where it’s not uncommon for both spouses to bring a significant amount of assets into their marriage.

Can you write your spouse out of your will? No, not exactly. Spouses are treated very different than biological and adopted children due to California’s community property laws. Unlike children, you can’t specifically exclude a husband or wife in a will or trust. What does the state’s community property laws have to do with it?

California’s Community Property Law

California is one of a handful of states that follows the “community property” model of distribution in divorces. Under the state’s community property law, spouses have a 50 percent interest in the community or marital property acquired during the course of the marriage. Meaning, all income and assets acquired during a marriage are owned 50/50 by both spouses, regardless of who earned the money or whose name is on the title.

Because of California’s community property law, you cannot simply disinherit your spouse through a will or revocable living trust. You can however, determine who will get your 50 percent share of the community property. It doesn’t have to be your spouse.

“Is there anything I can do to disinherit my spouse?” Yes, you do have two options – you can disinherit your spouse by executing a prenuptial or postnuptial agreement. Through these agreements, spouses can agree to keep certain assets separate.

For example, if you’re getting married, you can draw up a prenuptial agreement and you and your fiancé can agree to keep all income and assets you each acquire during the marriage separate. This way, they are not subject to division if you get a divorce.

Why Disinherit a Spouse?

There are a few key reasons why people decide to disinherit their spouses. Often, it’s because both spouses are wealthy and the other spouse doesn’t need the money. Another common reason is because a high-net worth individual is going into a second or third marriage and he or she would prefer to see their assets go to their children from a previous relationship, or to a favorite charity.

Related: Dividing Property in a California Divorce

To learn more about disinheriting a spouse in Newport Beach or the surrounding areas, contact Burch, Coulston & Shepard, LLP today.

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