What Does a New Marriage Mean For Your Estate Planning?

Posted by C. Mario Jaramillo, Esq. | Jul 27, 2016 | 0 Comments

If you've been recently married or about to be married in California, you probably have a lot on your mind. Wedding and honeymoon plans to be sure, and you may be adjusting to sharing a home with a new person and understanding how to combine your finances and planning now that you are part of a marital unit. One thing you may or may not be thinking about is how your new marriage can and will affect your estate planning. Whether you've thought about it or not, your new marriage means that California law does affect what happens to your estate upon your death. Below we discuss a few of the implications of a new marriage on your estate and what to think about as you assess your estate planning goals.

California is a Community Property State

It is important to understand at the outset that California is one of a handful of states in the country that apply community property standards to a marriage. What this means very basically is that all income earned during a marriage by either party belongs to the married spouses collectively as “community property.” You may have heard this concept discussed in the context of divorce, but it also applies to distribution of an estate after one spouse's death. Community property is distinct from “separate property” which is the property that either spouse acquired or earned before a marriage or which is a given as a gift or inheritance to one spouse during a marriage.

What Happens if You Die Without a Will

If a person dies without a will validly executed under the laws of California, a California state court will distribute the estate under the laws of intestacy. Under these rules, the surviving spouse will receive all of the community property in the marriage. The surviving spouse may also receive all or a portion of the deceased spouse's separate property, and, if there are any surviving children, parents, or siblings of the deceased, those parties may receive a portion of the separate property as well. Notably, an ex-spouse will not receive any property under these rules.

Needless to say, it is always preferable for a person, and not a court, to decide how their property should be distributed upon their death, making the creation of a will a fundamental aspect of any estate plan.

What Happens if You Die With a Will

For the most part, by creating a valid will, you can decide how your property should be distributed upon your death subject to some restrictions. Community property is an important concept here as well. Regardless of what a will says, a surviving spouse will receive at least one-half of the couple's community property.

If you created a will before you married, and which does not include your spouse, then your spouse may be considered an “omitted spouse” under California law. What this means is that they will receive the same property that you would have received if you hadn't created a will, and so the rules of intestacy would apply, meaning your spouse will receive all community property and at least a portion of separate property. There are several ways to avoid this result, including creating a new will, demonstrating an intent to exclude the spouse from the will, or providing for the spouse outside of the will.

Wills are Only the Beginning

The above discussion of wills only scratches the surface of the types of topics that you will want to think about for your estate planning strategies after getting married. You will want to consider the effect on children you may have together, children from previous marriages, and parents, and how trusts and other estate planning instruments can help you plan for your loved ones' futures. For assistance on all estate planning issues in California, contact an estate planning attorney at the Access Lawyers Group today.

About the Author

C. Mario Jaramillo, Esq.

Managing Attorney C. Mario Jaramillo, Esq., is an experienced relationship builder. During his first few years of practice, Mario worked at prominent California law firms, where he represented a multitude of clients. His caseload ranged from the simple to the complex; his clients from individual...


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