Spousal property rights are addressed by state law, which is why it’s so important to research the laws in your individual state before meeting with your estate planning attorney. If you’re thinking about getting remarried, there’s a good chance that you’ve overlooked necessary updates to your estate plan.
However, you need to be aware of the potential property rights of your spouse that may apply regardless of estate planning terms. Most states allow a surviving spouse what is known as an elective share of the deceased individual’s estate, regardless of any terms or statements inside the will or other estate planning documents. Other states, however, are community property states.
Typically, the surviving spouse’s elective share will range from 30% to 50%, depending on your state’s laws. In some of those locations, the elective share will only apply to the assets inside the probate estate, which includes those assets held only in the deceased individual’s name without a beneficiary designation. In California, the estate planning elective share for a spouse is 50%. This means your spouse is entitled under that rule to receive half of all estate items unless you structure your estate otherwise.
In other locations, however, a spouse’s elective share applies to the augmented estate, which means things, such as life insurance policies, revocable trusts, and financial or retirement accounts that pass through transfer on death, or beneficiary designations. Working with an experienced estate planning lawyer is one of the best ways to cover all of the bases with your estate planning process.