In a divorce or annulment, (not a legal separation) you are not a surviving spouse and you lose the right to inherit from your deceased ex-spouse. The annulment or dissolution of a marriage or registered domestic partnership revokes the rights of a spouse or registered domestic partner as a beneficiary of the divorced decedent's estate. Not only are the intestate rights cut off (see  Cal. Prob. C. §78(a)), but provisions in the deceased divorced spouse's will, executed before the dissolution or annulment, that name the surviving former spouse as a beneficiary are revoked by operation of Prob C §6122 unless the will expressly provides otherwise. See my article at: ~~

As set forth in Cal. Prob. C. § 6401, when a decedent dies without a Will (intestate), a surviving spouse is entitled to a share of the community property belonging to the decedent and a share of the decedent's separate property. The question is what inheritance rights, if any, does a surviving spouse have if she or he were separated at the time of death of the deceased spouse. Separation may impact entitlement to all or a part of his or her estate.

For example, one court determined that a judgment of separation severs marital property rights and the ability of a surviving spouse to inherit from the deceased spouse under California’s intestate succession rules. (Estate of Lahey (1999) 76 Cal.App.4th 1056.) Of course, this would not be the case if the surviving separated spouse waived his or her rights to take from the deceased separated spouse’s estate by entering into a written property settlement agreement. (See Cal. Prob. Code, §§ 140-147; also, see Estate of Smith (1966) 241 Cal.App.2d 205, 209.)

Many couples do not obtain a legal judgment of separation. Some couples continue to live together for economic reasons although either or both have the intent to separate. In that case, whether the surviving spouse has intestate inheritance rights is much less clear. Initially, in Marriage of Davis (2015) 61 Cal.4th 846, the California Supreme Court established a bright-line rule that living apart physically was an indispensable threshold requirement for separation.

However, recently, the California Legislature recently disagreed. As of January 1, 2020, Cal. Fam. Code § 70 now defines the date of separation as follows:

“Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse the intent to end the marriage.

(2) The conduct of the spouse is consistent with the intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.”

Cal. Fam. Code § 70 contemplates that spouses who have initiated dissolution proceedings but continue to live under the same roof for economic reasons may be considered separated for purposes of the general community property presumption in Cal. Fam C §760 and the separate property exception in Cal. Fam C §771. The legislation effectively allows spouses to remain in the home and convert their earnings to separate property unilaterally in the absence of agreement.

CONTACT SWEENEY PROBATE LAW FOR AN INITIAL CONSULTATION

Understanding the issues discussed in this article requires the assistance of a qualified probate attorney who can better assess the appropriate course of action. I handle probate matters in all California counties and California probate courts, including Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing in California and outside of California, including foreign countries.