How to Include Your Spouse in Your Will

If you’re married, you may not realize how important it is to include your spouse in your will. After all, you’re already married, so don’t you share everything you own?

Well, not quite. While failing to include your spouse in your will is less of a problem than leaving out a long-term unmarried partner, it can still put them at risk. It can also leave your estate vulnerable to unnecessary taxes and probate disputes. 

California’s Inheritance Laws for Spouses

California has strict rules regarding inheritances from one spouse to another. It is a community property state, meaning couples share true joint ownership of all marital assets. While this most commonly impacts divorces, it also plays a critical role in how inheritance works when one spouse passes away.

According to state law, a married person’s estate consists of their separate property and half of the marital assets. The other half belongs to their partner automatically. Only the decedent’s share of the assets is considered for inheritance. 

Furthermore, when a married person dies intestate, or without a will, their partner receives primary rights to their estate. However, primary rights are not the same as the sole rights. Other people, such as the decedent’s children, grandchildren, parents, siblings, or nieces and nephews, may also have the right to some property. 

If two or more children or grandchildren survive the deceased, the surviving spouse may only have the right to one-third of the decedent’s estate. This could result in them losing as much as a third of the overall marital assets. 

Finally, all debts of the deceased automatically fall to their partner to pay with the community property. This places an additional burden on them if there is no plan in place to cover the expenses.

Types of Wills for Married Couples

The issues described above are just a few of the reasons why it is important to consider your spouse when writing your will. As you begin the estate planning process, you may consider one of the three following structures:

  • Joint Wills: Some couples share a single will expressing both of their last wishes. While this may seem efficient, the document cannot be changed after one person passes away, so it is no longer the most common method.
  • Mirror Wills: A common alternative is to use “mirror” wills, where each person signs a separate but nearly identical will, except for naming the other as their beneficiary. These are more flexible because they can still be changed after one person passes away.
  • Separate Wills: Finally, some couples choose to go their own way and write different wills entirely. In this case, each person has their own will, and the resulting documents could differ significantly. The problem with this is that the surviving spouse may be unhappy with how the marital property is handled as a result.

In most cases, mirror wills are the most effective and flexible way to protect your spouse.

How to Protect Your Spouse in Your Will

Even with a mirror will, you must consider tax and inheritance laws to guard your spouse against unwanted conflict. A skilled California estate planning lawyer can help you build an effective strategy using tactics like: 

  • Naming your spouse as your sole beneficiary should they survive you: The simplest solution to most spousal inheritance issues is to name your partner your sole beneficiary. You should also name secondary beneficiaries in case your partner should predecease you. This helps avoid messy and complicated probate battles.
  • Making the most of the unlimited marital deduction: Federal law permits one spouse to transfer an unlimited amount of assets to the other upon death without incurring taxes. For people with smaller estates, this can entirely circumvent estate taxes.
  • Preparing for the estate tax: If your joint estate exceeds the individual estate tax exemption limit, you may need to do more work. Your attorney can help you set up a trust to protect your assets from being unnecessarily taxed after your partner passes. 

A well-written will can guard your assets and your spouse’s well-being when you can no longer do so yourself. However, inheritance, probate, and tax laws make writing a strong will a complicated matter. The experienced attorneys at The Dayton Law Firm P.C. can help. We are dedicated to helping California families produce stronger, more resilient wills and estate plans to support their loved ones. Learn more about how we can help you draft a will to protect your spouse by getting in touch today.