If you pass away without having made plans for the distribution of your worldly goods, the State of California will use its plan. These laws, called the laws of “intestate succession,” determine who your heirs are if you die without a will, trust, or other estate plan. They are based on presumptions as to how the majority of people would want their property divided if they had taken the time to plan the distribution themselves. In many cases the result is what the deceased person would have wanted anyway, but this is not always the case.
The laws of intestate succession are complicated. If you are married everything you own will be treated as either community property or separate property. As a practical matter, most property acquired through wages or earnings during the marriage is community property. Property acquired by gift or inheritance is generally separate property so long as it has been kept separate from the community property. As a general rule, a married person can give his or her one-half of the community property and all of his or her separate property to whomever he or she chooses upon death, with proper estate planning.
With respect to community property: Under the state’s plan, if a married person passes away with no estate plan and leaves a surviving spouse, the surviving spouse is entitled to all of the deceased spouse’s community property. Even if the couple had been living separate and apart for several years or filed for divorce but never completed it, the surviving spouse is entitled to the property. Unless there was a formal property settlement agreement or legal separation, the law presumes that a married person would want his or her surviving spouse to have the community property. There is no inquiry into the actual facts of the matter.
With respect to separate property: If a married person passes away with no estate plan, the rules that determine who will get the separate property are complicated. In all cases, the surviving spouse will be entitled to some portion. The separate property is generally divided as follows: With one child, one-half to the surviving spouse and one-half to the child; with more than one child, one-third to the surviving spouse and two-thirds to the children. If the deceased person left a spouse but no children, then the following persons are entitled to share in the estate in the following order of preference: grandchildren (or great-grandchildren), parents, brothers and sisters, nieces and nephews. Children of deceased persons get the portion that would otherwise go to their deceased parent. The same order of preference applies to single persons who pass away without children.
People do not have to be at the mercy of the State’s plan of distribution. Through the mechanism of a living trust, a married person can designate who is entitled to receive his or her property. It is even possible for a person to give his or her spouse the rights to use the property for his or her lifetime and then have the property given to someone else upon the surviving spouse’s death, a common practice where second marriages are involved. To quote an advertising slogan, “Have it your way!”
© 2022 by Marlene S. Cooper. All rights reserved. (You may obtain further information at the website www.marlenecooperlaw.com, by email at MarleneCooperLaw@gmail.com, by phone at (626) 791-7530 or toll free at (866) 702-7600. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article).