Does a Surviving Spouse Automatically Inherit?

Does a surviving spouse automatically inherit everything from the deceased spouse?

Well, the short answer to that question is, no. There is nothing automatic in California.

Either there is some writing in place that determines where the property is going, or whether they are going to be governed by the laws of intestate succession. So here is what this means in practice: if the deceased spouse had a will or a trust, that leaves something, or everything to the surviving spouse, that is what is going to happen. That’s the mechanism by which the surviving spouse will get the property.

 If there is nothing in writing, there is no will, there is no trust.

Then the surviving spouse is going to have to open up probate and do what is called intestate probate (meaning there was no will, there is no written plan for how the property passes). Just because you are the surviving spouse, does not mean automatically that you get everything. California has laws governing how property passes in that situation.

• If the property is community property, then as the surviving spouse you will get it at the end of probate (after it has been shown that this is community property).
• If this is separate property that is going through probate, as the surviving spouse, you are going to get a share. How big that share is, will depend upon how many children there are of your deceased spouse. But you are not going to get the whole thing.

You don’t have an entitlement under that situation. So, the short answer is no. The longer answer is to know what your situation is so you can make sure that you can assert your rights to get everything that you are entitled to. If you need to do probate or have questions about completing probate, do not hesitate to contact our office today.