Can I disinherit my spouse in my Will?

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Can I disinherit my spouse in my Will?

My spouse left me and moved out quite a while ago, and she does not want to be beneficiary of my estate. I want my son, who currently lives with me, to be beneficiary of my entire estate property. Can this be done in a Will legally? Even though she does not want any of my estate.

Asked on May 9, 2012 under Estate Planning, California

Answers:

Madan Ahluwalia / Ahluwalia Law P. C.

Answered 8 years ago | Contributor

California is a community property state, and the general rule is that property acquired during a marriage is owned equally between spouses regardless of who acquired it.   For example, say that during your marriage you earned $10,000 in wages.  Under community property principles, your wife owns $5,000 of that $10,000.  Because of her community property interest, you cannot properly devise all of the $10,000 to your son; you will only be able to devise $5,000.  

However, since your wife has stated that she does not want any of your estate, one available option (besides divorcing her) is to have her sign a waiver of her community property rights against your will.  You should seek counsel to assist you in drafting a waiver to ensure that the waiver is enforceable.   


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