Your Will And Your Surviving Spouse

Many California residents write a will which leaves their entire estate to their surviving spouse – even after they’ve divorced! But what is a “surviving spouse”?

California Probate Code Section 78 defines a “surviving spouse” by what who that person is not. Section 78 says the term “surviving spouse” does not include any of the following:

(a) A person whose marriage to the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death.

(b) A person who obtains or consents to a final decree or judgment of dissolution of marriage from the decedent or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as husband and wife.

(c) A person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony with a third person.

(d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.

If your will leaves your estate to your “surviving spouse” who may no longer hold that title because of the application of Section 78, then your estate may pass through California’s laws of intestacy – the laws which apply to situations where no will exists or where no heirs have been designated.

Have your will prepared properly by a qualified estate planning attorney so you can leave your estate to those you really want to have it. Call Mitchell A. Port at (310) 559-5259.