Can a California Spouse Be Disinherited?
If you’re studying for the California Bar Exam using a multistate outline, you’ve read about the “elective share” — a spouse’s right to reject the will and claim a fixed percentage of the estate instead. Here’s the trap: California doesn’t have one. Write that a California spouse “elects against the will” on your exam, and you’ve made a factual error, not just an imprecise one.
This article explains what the elective share is in other states, and — more importantly — what California uses instead to make sure a surviving spouse is never quietly cut out.
What Is an Elective Share?
An elective share is a statutory right, found in separate-property states, letting a surviving spouse reject the decedent’s will and instead take a fixed percentage of the estate — typically one-third to one-half — even if the will leaves the spouse nothing. It exists to prevent one spouse from disinheriting the other.
That protection matters in states where separate ownership means one spouse can otherwise write the other out entirely. California doesn’t need the same fix, because of how community property already works.
Why California Doesn’t Need It
California is a community-property state. Under Probate Code Section 100, a surviving spouse already owns one-half of all community property outright, by law, the moment the other spouse dies — not as an “election,” but as pre-existing ownership. Section 101 does the same for quasi-community property (generally, property earned while married but domiciled outside California).
That community-property half never becomes part of the decedent’s estate in the first place. There’s nothing to “elect against,” because the surviving spouse already owns it. The decedent can only will away their own half of the community property, plus their separate property.
What Actually Protects a California Spouse
Two things stand in for the elective share in California:
- Automatic ownership of one-half of community and quasi-community property (Probate Code §§ 100–101) — guaranteed regardless of what the will says.
- The omitted-spouse statute (Probate Code §§ 21610–21611) — protects a spouse who married the decedent after the will was signed and wasn’t provided for.
An omitted spouse receives the decedent’s one-half of the community and quasi-community property (bringing the spouse to 100% of those assets), plus a share of the decedent’s separate property based on the intestate formula in Section 6401(c).
Comparing the Two Systems
| Feature | Common-Law Elective Share (Not CA) | California System |
|---|---|---|
| Trigger | Spouse affirmatively elects within 6 months–1 year | Automatic; no election required |
| What it covers | Percentage of probate (or augmented) estate | One-half of community/quasi-community property, always |
| Protects against being left nothing | Yes, for any spouse | Only via omitted-spouse statute, and only if married after the will |
| Can be waived | Yes, by prenup/postnup | Yes, by valid premarital or marital agreement |
Worked Example: Two Different States
Scenario A (hypothetical common-law state, not California): Decedent’s will leaves the entire $300,000 estate to a charity. Surviving spouse of 20 years gets nothing under the will. The state provides a one-third elective share. Spouse elects and receives $100,000; the charity keeps $200,000.
Scenario B (California): Same facts, but the couple lived in California and the $300,000 was the decedent’s separate property acquired before the marriage. The spouse married the decedent before the will was signed and was simply left out — no disinheritance clause, no confusion. Because the omitted-spouse statute only protects a spouse married after execution, and there’s no community property to claim a half of, the spouse takes nothing. This is exactly why importing the elective-share doctrine into a California answer is a serious mistake — the outcome can flip entirely.
When the Omitted-Spouse Formula Applies
Say a spouse married the decedent after the will was executed, wasn’t mentioned in it, and the decedent dies leaving $600,000 in community property and $400,000 in separate property, survived by one child. The omitted spouse takes all $600,000 in community property (their own half plus the decedent’s half) and one-half of the separate property ($200,000, per the Section 6401(c) formula for one surviving child) — a total of $800,000. The remaining $200,000 of separate property goes to the child.
Waiving Spousal Rights
A California spouse can waive community-property and omitted-spouse rights through a valid premarital or postnuptial agreement, provided there’s full disclosure and, ideally, independent legal counsel for each side. This comes up often in second marriages, where a testator with adult children wants to limit what a new spouse can claim.
Frequently Asked Questions
Can I disinherit my spouse in a California will?
You can disinherit your spouse from your separate property and from your own half of community property, subject to the omitted-spouse statute if you married after signing your will. You cannot touch the spouse’s own half of community property — they already own it.
Does California have any equivalent to the elective share?
Not directly. Community property ownership (Probate Code §§ 100–101) and the omitted-spouse statute (§§ 21610–21611) serve a similar protective purpose but work automatically, without requiring an election.
What if I married my spouse after I wrote my will?
If you never updated the will, your spouse is likely an “omitted spouse” under Probate Code Section 21610, entitled to your half of the community property plus a share of your separate property — unless a valid prenuptial or marital agreement says otherwise.
Key Takeaways
- California has no elective share statute — do not apply the common-law doctrine on a California question.
- The surviving spouse already owns one-half of community and quasi-community property under Probate Code Sections 100–101, regardless of the will.
- The omitted-spouse statute (Probate Code §§ 21610–21611) protects a spouse married after the will’s execution, using the Section 6401(c) intestate formula for the separate-property share.
- A spouse married before the will’s execution and simply left out has no elective-share-style remedy in California.
- Spousal rights can be waived by a valid premarital or postnuptial agreement.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- intestate succession in California
- pretermitted child in California
- community property definition
- testamentary power at death