Topics in Estate Planning: Community Property vs. Spousal Right of Election

California is a “community property” state. “Community property” refers to any property that is acquired by either spouse during a legally valid marriage. This designation comes into play when dividing marital assets as well as in estate-related situations when a spouse dies. According to California community property law, it is illegal for anyone to bequeath community property to anyone but the surviving spouse in a will. This helps protect the survivor against being left nothing. Laws work differently in states that do not recognize community property. That’s where the spousal right of election is applied instead. In most states, in situations where the deceased spouse has not included the other spouse in his/her will, the excluded surviving spouse will have the opportunity to take what is known as an “elective share”. An “elective share” is defined as a certain portion of the deceased spouse’s estate. Here are the options as far as election. Suppose the surviving spouse was left a certain portion of assets in the deceased spouse’s will. S/he can take that bequest as it was written in the document, or they may instead opt for an elective share (usually one third of the total estate). Sometimes the elective share is greater than one third, depending on such factors as whether there are children and even the length of the marriage. The choice resides with the surviving spouse. There is one more point I want to discuss: the exception to the spouse’s right of election. If a couple enters into a prenuptial agreement or into a separation agreement, and in that document one or both parties waive their right to elect against the (future) will, then that is exactly what occurs. That right to claim is gone. This blog should not be taken as legal advice. It is merely a discussion of my thoughts and opinions. I believe that in an ideal world, everyone would always “play nice.” But the reality is that conflicts happen, and one step you can take to mitigate conflict is to establish a comprehensive estate plan. That’s my area of expertise, and I would be glad to address all of your questions and concerns about wills and other legal estate planning considerations. Just give me a call at 818.956.9200.