attorney explaining elective share

What Is the Elective Share?

There are certain laws relating to estate planning that may not be widely known about but are, nonetheless important and can have big impacts on how an estate plan actually ends up playing out. Elective share laws are some such laws. Here, we will go into more detail about what an elective share actually is and how it is handled in California.

What Is the Elective Share?

In common law states, there is usually an elective share law on the books. The elective share protects a spouse’s right to a portion of his or her deceased spouse’s estate, regardless of whether the deceased spouse omitted the surviving spouse from the estate plan or outright intended to disinherit the surviving spouse. The elective share will usually give the surviving spouse the option to receive one-third and up to one-half of the deceased spouse’s estate. Obviously, if the surviving spouse was left little to no inheritance by the deceased spouse, it would make sense to choose the elective share.

California, however, is a community property state. There is no provision for a surviving spouse to make such an election. This is mainly due to the fact that California is a community property state grants inherent protections against the disinheriting of a surviving spouse. Because it is a community property state, a surviving spouse automatically has the right to one-half of all community property and one-half of the quasi-community property. Community property refers to, generally speaking, property acquired during the marriage and it is considered to be owned equally, 50-50, between two spouses. Separate property is property acquired prior to marriage or acquired during marriage by gift or bequest. Quasi-community property is property of a couple that is domiciled in California acquires while in the State of California, but is actually, physically located in a common law state.

This right to half of the community property and quasi-community property remains despite any explicit attempts within the estate planning documents to disinherit the surviving spouse. The only way around this is if there is a valid agreement, such as a prenuptial or postnuptial agreement, stating otherwise. Without an explicit agreement in place, the surviving spouse will automatically own half of the community property. The distribution of separate property will depend on the estate plan and the surviving heirs and descendants of the decedent.

Estate Planning Attorneys

Estate planning laws are complex but can have serious impacts on a person’s plans and protections for the future. At OC Wills & Trusts, we provide dedicated legal counsel to help ensure your estate plan is designed to meet and protect your goals for yourself and your loved ones. Talk to us about how you can put a strong, comprehensive estate plan in place that is uniquely tailored to you and your specific goals. For estate planning you can count on and to bring yourself and your loved ones peace of mind, OC Wills & Trusts is here for you. Contact us today.