Can a Spouse in California Leave an Inheritance to Someone Else?

By Teo Spengler

Mistress, grandson, personal trainer or Greenpeace; a married person in California can leave his property to anyone he likes when he dies. The state's community property law plays a role in dividing up marital property between spouses, but it does not restrict a spouse's right to leave his share of the marital property -- as well as all of his separate property -- to whomever he likes.

Leaving Assets to Beneficiaries

Many people leave all or most of their worldly goods to their spouse in their wills, but no rule requires you to do so in California. The law permits every person, married or not, to dispose of his assets by will when he dies. A person making a will names the beneficiaries he wants to inherit his property and the court will carry out his wishes to the extent they are legal. However, in a community property state like California, property ownership is not always easy to determine.

Community Property

If you live in California, the state considers the property you or your spouse acquire during your marriage and the debt you incur as belonging to the community, not to the individual spouse. If the marriage ends, each spouse has the right to one-half of the community property and must assume one-half of the community debt. The division is important during divorce proceedings, when property must be separated between the two spouses. It is also significant when one spouse dies since his will can only include his share of the community assets.

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Separate Property

Even in community property states like California, some property is separate property, belonging entirely to one spouse. Generally, property one spouse acquired before the marriage is his separate property, as is money he received during the marriage as a gift or inheritance. A couple can also agree in writing to keep finances separate, making all property separate property. Often, couples mingle community and separate property, making it difficult to straighten out. But the distinction between community property and separate property is critical once spouse dies, since he can will all of his separate property to a third party, but only his 50 percent share of community property.

Community Property With Right Of Survivorship

If you and your spouse own real property, the type of title you hold can preclude willing the property to a third party on your spouse's death. California recognizes a form of taking title to jointly owned real estate called "community property with right of survivorship." This type of title, like joint tenancy, gives each spouse an undivided one-half interest in the property while both are alive; when one spouse dies, the other takes title to the whole. The decision to use this form of title, rather than joint tenancy, is often a function of estate and tax planning, but it will have a decided impact on a spouse's ability to devise real property at his death.

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Does a Joint Tenancy Bypass Probate?

A joint tenancy is a form of property ownership in which two or more people own the assets together, including the right of survivorship. When a joint tenant dies, the jointly held asset passes to his surviving joint tenant, bypassing probate court. Many types of assets may be held as joint tenancies, such as real estate assets, bank accounts, and stocks and bonds.

Arkansas Inheritance Laws

In Arkansas, a resident can make a valid will if he's at least 18 years old and mentally competent. Arkansas law also requires a will to be written and attested by two witnesses. If an Arkansas resident dies without a will, his property passes to his surviving spouse and other heirs according to state law. These laws are called "laws of intestate succession." When someone dies without a will, he is said to have died "intestate."

What Must a Surviving Spouse Inherit?

The amount a surviving spouse must inherit depends on a number of factors, including whether the married couple lived in a community property state and whether the deceased spouse made a will. If no will was left, then the spouse died "intestate," which means the surviving spouse’s share of the estate is governed by state law. If the decedent did make a will, the surviving spouse receives whatever was devised to her; however, the spouse's share of the estate cannot be less than prescribed by state law.

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