Effect of Death of Married Person on Community Property

In today’s mobile world, people might live and work in many countries during their careers. The citizen first acquires property in one state as a single person. Later, they marry and acquire property in other states, building a community of assets.

California Probate Code Section 100

California Probate Code Section 100 states that half of the community property belongs to the surviving spouse. The other half belongs to the decedent.[1]

Division 2 of the Section allows spouses to agree in writing on dividing community property. They can divide based on the aggregate value or individual assets. The subdivision does not authorize or recognize a non-pro-rata division of property without a written agreement.

California Probate Code Section 103

If spouses die leaving or quasi-community property and no clear and compelling proof shows which spouse survived the other, California law may divide the property equally: [2]

• One-half of the common property and one-half of the quasi-community property shall be managed or allocated, or otherwise disposed of, as if one spouse had survived and as if that one-half of the property belonged to that spouse.
• The other one-half of the common property and the other one-half of the quasi-community property shall be managed or divided or otherwise disposed of as if the other spouse had survived and as if that one-half of the property belonged to that spouse.

The transfer of community and quasi-community assets to a revocable trust assumes those assets maintain their overall character for any division established by the trust, according to Sections 100 and 101. This section applies to all transactions made before, on, or after January 1, 2000.

[1] California Probate Code Section 100

[2] California Probate Code Section 103 

KAASS LAW helps navigate California’s Probate Code, guide community property division, draft agreements, manage revocable trusts, and ensure legal compliance.

Property Division Peculiarities of Mixed Marriages

In California, attorneys often place special emphasis on addressing the unique legal and financial considerations that arise in mixed marriages. That is, where one of the spouses is a foreign national or resides outside the state. In such cases, a conflict of jurisdiction may arise in the division of property upon the death of one spouse. California law treats property acquired in other states as community property. If the spouses subsequently resided in California. This provision is important in the case of inheritance, especially if the heirs have a dispute over ownership.

Inheritance and Debt Obligations

Another critical issue is the debt obligations of the deceased. Under California law, debts incurred during the marriage can be collected from the surviving spouse’s share of the community property. However, creditors must go through the process of notice and filing claims with the probate court. To protect their assets, spouses are encouraged to enter into a prenuptial agreement or property settlement agreement in advance.

Litigation and Disputes Over Rights to Property

It is not uncommon for relatives of a deceased person to dispute the surviving spouse’s right to a piece of property. Especially when there is no will. In such cases, California courts consider both the language of the will and the intent of the spouses to divide or not divide the property. The law allows for the consideration of:

• emails
• written communications
• oral agreements

If they can be corroborated by witnesses.

Tax Implications

The death of a spouse may have tax implications. For example, the capital gains tax on the sale of an inherited property may be reduced. This is due to the increased value. This becomes especially important when clients need to make decisions about real estate or investments they acquired jointly, as clear guidance can help avoid future disputes and ensure a fair distribution. It should be noted, however, that the tax rules vary depending on the type and nature of the property.

Legal Help with Property Division

Properly drafting a joint property and will can greatly simplify the process of dividing assets upon the death of a spouse. KAASS LAW can:

• prepare legal documents
• advise on trusts
• protect clients’ interests in court