Can I Disinherit My Spouse in California

Emily just left my office, devastated. She discovered a codicil to her husband’s Will – a codicil she never saw, never signed, and that was improperly witnessed. He’d attempted to leave everything to a new girlfriend, effectively disinheriting her after 30 years of marriage. Now, she faces a protracted legal battle, easily costing upwards of $50,000, just to potentially claim what she’s rightfully entitled to. These situations are heartbreaking, and entirely preventable with careful estate planning.

As an Estate Planning Attorney and CPA with over 35 years of experience here in Escondido, I frequently advise clients on the complexities of spousal rights in California, and how to navigate the process of excluding a spouse from a Will. It’s possible, but fraught with peril if not done correctly. California is a community property state, meaning assets acquired during marriage are generally owned equally. However, separate property—assets owned before marriage, or received as a gift or inheritance during marriage—offers more flexibility.

What Rights Does My Spouse Have to My Estate?

Even with a valid Will, your spouse has certain rights under California law. These rights are significantly stronger if you die without a Will (intestate). A surviving spouse is typically entitled to a share of the community property, and potentially a portion of your separate property as well. The exact amount depends on whether you have children. Without children, a spouse may be entitled to everything. With children, the spouse generally receives one-half of your separate property.

Can I Specifically Exclude My Spouse in My Will?

Yes, you can. California Probate Code § 6113 allows you to specifically exclude your spouse from inheriting, even if you have children. However, the exclusion must be express, in writing, and clearly state your intention to disinherit your spouse. Ambiguity will be construed against the exclusion. A simple omission isn’t enough; you must affirmatively state that you do not want your spouse to receive any portion of your estate.

What Steps Do I Need to Take to Effectively Disinherit My Spouse?

First, the Will itself must be flawlessly executed. Improper signing, insufficient witnesses, or a lack of testamentary capacity can invalidate the entire document. California Probate Code § 6110(c)(2) stipulates that while courts may validate a technically flawed Will with “clear and convincing evidence” of intent, relying on this provision is risky and expensive. Furthermore, a simple Will can be challenged more easily.

Label: Ensure Proper Execution: The Will must be signed by you in the presence of two disinterested witnesses. These witnesses cannot be beneficiaries under the Will (see California Probate Code § 6112). An ‘interested witness’ (a beneficiary) triggers a legal presumption of duress or fraud. Unless there are two other disinterested witnesses, the beneficiary may lose their gift, taking only what they would have received under intestacy rules.
Label: Specific Language: Use clear and unambiguous language, such as “I specifically exclude my spouse, [Spouse’s Name], from receiving any property from my estate.” Avoid vague terms or indirect phrasing.
Label: Separate Property Identification: Clearly identify your separate property in the Will. This is crucial, as the exclusion only applies to separate property, not community property. As a CPA, I can help you accurately document and value your separate property assets, establishing a robust step-up in basis for beneficiaries and minimizing potential capital gains tax liabilities.
Label: Consider a Trust: For greater control and to avoid probate altogether, a revocable living trust can be a more effective tool. Assets held in the trust bypass probate, and the trust document dictates distribution according to your wishes.

What if I Want to Leave My Spouse a Minimal Inheritance?

You are not required to leave nothing. You can leave a nominal amount, but it must still be clearly stated in the Will. However, leaving a minimal amount may still trigger a challenge from your spouse, who could argue that it’s not a genuine reflection of your intent and seek a larger share.

What About Assets Held in Joint Tenancy or Payable-on-Death Accounts?

Assets held in joint tenancy with right of survivorship, or with payable-on-death (POD) designations, pass directly to the surviving owner or beneficiary, regardless of what your Will says. These assets are not subject to probate and are excluded from your probate estate. It’s vital to coordinate these holdings with your overall estate plan.

What About Digital Assets and New Laws?

Don’t forget your digital life. Effective 2025, California law (CPC § 871) was expanded to grant fiduciaries power over digital accounts; however, you must still grant explicit RUFADAA powers in your Will or Trust to bypass federal privacy blocks. Failing to address digital assets can create significant complications for your executor.

What Happens if the Will is Invalidated?

If a Will is invalidated, assets fall under intestacy; however, for deaths on or after April 1, 2025, estates with personal property under $208,850 (per CPC § 13100) may still bypass full probate via affidavit. This simplifies the process for smaller estates, but doesn’t absolve the need for proper estate planning. While California allowed temporary remote witnessing during the pandemic, the law (CPC § 6110) has reverted to requiring strict simultaneous presence; remote signatures are generally invalid for Wills unless they meet the narrow ‘Electronic Will’ standards of AB 298.

What does a California probate court look for when interpreting testamentary intent?

In California, a last will and testament is reviewed under probate standards that focus on intent, capacity, and execution. Clear drafting reduces ambiguity, limits misinterpretation, and helps families avoid unnecessary conflict during estate administration.

• Ambiguity: Avoid vague terms that trigger interpretation fights.
• Health: verify mental state at signing.
• Omissions: check for missing amendments often.

For California residents, understanding how intent, authority, and compliance interact is one of the most effective ways to protect family harmony and estate integrity. A will that anticipates probate scrutiny is far more likely to be honored as written and far less likely to become the source of unnecessary conflict.

Resources for Legal Standards & Probate Procedure

• Escondido Local Rules: San Diego Superior Court – Probate Division
  Access the essential “Local Rules” (Division IV) effective January 1, 2026. This includes mandatory e-filing procedures, current Probate Examiner notes, and Local Rule 4.4.5 regarding remote appearance requirements (via MS Teams) for non-evidentiary hearings.
• Attorney Verification: State Bar of California
  The official regulatory body for California attorneys. Use this to verify a lawyer’s “Certified Specialist” status in Estate Planning or to access 2026 guidelines on the ethical handling of Client Trust Accounts (IOLTA).
• Self-Help & Forms: California Courts – Wills, Estates, and Probate
  The Judicial Council’s official portal. It includes the updated 2026 forms for the $208,850 personal property threshold and the $750,000 “Primary Residence” simplified transfer procedure (AB 2016).
• Federal Estate Tax: IRS Estate Tax Guidelines
  The authoritative federal resource for estate and gift tax filing. It reflects the 2026 “OBBBA” permanent exemption of $15 million per individual, replacing the previously scheduled Tax Cuts and Jobs Act (TCJA) sunset.