Overview of the elective share in California

Like other states, California law gives special rights to a person's spouse when that person dies. The idea behind these laws is that a person's spouse ought have a right to a portion of the deceased person's estate, even if the person's spouse is not named in the deceased's estate planning documents.

Moreover, there is a strong legal assumption that someone who died would not want to cut his own widow out of the estate.

As the name implies, California's provision for an elective share gives a surviving spouse the right to choose to take certain property from the estate, even if that property was not part of the surviving spouse's inheritance. It only makes sense to take an elective share when the surviving spouse was not given property through estate planning.

Complicating affairs in California is the fact that California is a community property state. Under California's elective share provisions, a surviving spouse has the right to one-half of any community property, as well as one-half of what the law calls quasi-community property.

Additionally, a surviving spouse can elect to take a certain percentage of the deceased person's separate property, that is, property owned by the deceased person alone. How much depends on the number of the deceased person's surviving children and grandchildren, but in some cases, a surviving spouse can use the elective share to claim the entire estate even in the face of a valid will.

It is worth pointing out that a spouse can waive her right to receive an elective share.

Those in San Jose and the greater Bay Area who have questions about what to do with respect to the elective share should consider speaking to an experienced California estate planning attorney who has knowledge about wills and trusts.

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