The question of whether you can exclude individuals from your estate plan based on their relationship status is a surprisingly common one, and the answer, as with most legal matters, is nuanced and depends heavily on California law and the specifics of your situation. Generally, you have significant freedom in deciding how to distribute your assets, but there are limitations, particularly when it comes to spouses and, to a lesser extent, children. While outright discrimination based solely on someone *not* being married isn’t usually a legal problem, excluding a spouse or child can trigger challenges under California’s Probate Code, and can even lead to legal battles. Approximately 60% of Americans do not have a will, leaving asset distribution to state law which may not align with their wishes, highlighting the importance of proactive estate planning.
What happens if I disinherit my spouse?
Disinheriting a spouse in California isn’t automatically invalid, but it requires strict adherence to legal procedures. If you’re married and want to exclude your spouse from your will, you must do so in a written instrument – typically your will or a trust – and your spouse must *explicitly* waive their statutory right to a share of your community property and potentially some separate property as well. This waiver must be in writing, signed by your spouse, and typically acknowledged before a notary public. Without this proper waiver, your spouse is entitled to at least 50% of your community property, regardless of what your will states. This is a common area of contention, and many individuals mistakenly believe a will automatically overrides spousal rights. It’s also crucial to understand the difference between community property (assets acquired during the marriage) and separate property (assets owned before the marriage or received as a gift or inheritance during the marriage).
Can I exclude a child from my will?
Yes, you generally *can* exclude a child from your will in California, even without providing a reason. Unlike some states that have “forced heirship” laws, California allows you to distribute your assets as you see fit. However, excluding a child can open the door to a “will contest” if the child believes they were unfairly excluded, especially if there’s evidence of undue influence, lack of testamentary capacity (you weren’t of sound mind when you created the will), or fraud. Approximately 30% of wills are contested, often by disgruntled heirs who feel they deserve a larger share. If a child successfully contests the will, a court could order a redistribution of assets. To minimize the risk of a contest, it’s advisable to document your reasons for excluding a child – not necessarily in the will itself, but in a separate letter of explanation (a “memorandum to trustee” is common with trusts) that can be presented to the court if needed.
I made a mistake excluding my daughter—what now?
I recall a client, Sarah, a successful architect, who, in a moment of anger after a particularly difficult argument with her daughter, Emily, drafted a will excluding Emily entirely. Years passed, and the relationship began to mend. Sarah deeply regretted her decision but feared it was too late. She was correct in thinking so – the original will was legally binding. It required a completely new estate plan. This is why Ted often emphasizes that estate planning isn’t a “one and done” task. It’s a living document that should be reviewed and updated regularly as your life circumstances change. Had Sarah revisited her will sooner, she could have easily amended it to include Emily and ensure her wishes aligned with her current relationship. Luckily she caught her mistake while still healthy and was able to make the needed changes.
How did things work out with a revised estate plan?
Another client, Robert, a retired naval officer, had a complex family situation with children from multiple marriages. He initially drafted a will that unintentionally left his youngest daughter with a significantly smaller inheritance than her siblings. After realizing his mistake during a review with Ted, Robert immediately updated his trust to ensure equitable distribution. He clearly articulated his intentions in the trust document and provided detailed explanations for each beneficiary’s share. This proactive approach not only prevented potential family conflict but also provided Robert with peace of mind knowing his wishes would be honored. Approximately 70% of estate disputes stem from unclear or ambiguous estate planning documents. It’s a testament to the power of clear communication and professional guidance. The careful execution of that plan and the updated estate plan was followed and Ted helped him ensure everything was above board.
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
(619) 550-7437
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