July 21, 2011

Disinheritance in California

Many people believe that they are entitled to an inheritance from their parents or next of kin. This is simply not true. A California resident is free to disinherit their children, parents, nieces, nephews, etc. The only individual who they cannot disinherit is, if applicable, their spouse. The reason being is that each spouse only owns ½ of each community property asset and therefore may not will more than they own. For instance, if husband and wife purchase a home together after marriage and pay off the entire mortgage with their joint earnings, but the husband attempts to will the entire house to a third-party, the wife may void this transaction. Harris v Harris (1962) 57 C2d 367.

Some jurisdictions outside the United States have what is called "forced heirship" where a relative can request a set aside of the decedent's estate. However, these forced heirship laws do not exist in California. 

Still, if a person wishes to leave nothing to their children or to the maximum extent their spouse, they should do so in a precise fashion because there are laws that govern the omission of a child and spouse. Otherwise, a relative may inherit through intestate succession if no will, trust or beneficiary designation is made.