In California, a probate homestead allows a surviving spouse and children to remain in the deceased spouses home after he or she pass away. It may also have the effect of superseding the deceased spouse's wish to have his or her home be distributed to a non-family member upon death.

This could be invoked by a surviving spouse or children if the deceased spouse willed the home to another person to their exclusion. Although this may ultimately frustrate the deceased spouse's wishes, it may be used by a surviving spouse and minor children to protect the home from creditors, the beneficiaries of the deceased spouse's Will or his or her heirs at law.

Waivers

Like a family allowance, it's possible to obtain a waiver from a spouse of his or her right to request a probate homestead. In addition, provisions in your Will or Trust of your intent to leave the home to someone other than your surviving spouse may help prevent the court from ordering a probate homestead for the benefit of your surviving spouse.

Often, it is best to deal with waivers prior to, or at the beginning stages of marriage, as that is when future spouses are most amenable to such agreements. Once spouses have been married for a while, a request for a waiver may raise suspicions in cause partners to lose faith in one another.

The vast majority of clients we encounter never have concerns about a probate homestead. However, where the strength of a marriage has weakened, or where the parties are contemplating distributing property in a non-traditional way (i.e., leaving property for the benefit of someone other than the surviving spouse or children), it would be wise to consider the possibility of a probate homestead.

Probate is the process by which the Court oversees the administration of your estate, including the payment of any debts and the transfer of your assets to your beneficiaries or heirs. What some people don't know, however, is that there are a number of statutes within the California Probate Code that are intended to protect your family (e.g., surviving spouse and your descendants).

While this is typically a positive benefit for your family, it may not be what you intended, for example, if you had others beyond your family that you wanted to care for and who you wanted to have as the beneficiaries of your estate. Under the law, your family's needs may have priority over your other beneficiaries, which may ultimately affect your estate plan.

Here are some of the family protections available:

1. Family Allowance - An allowance that is provided to your family during the probate administration period, which would utilize the estate assets.
2. Probate Homestead - May allow your family to continue using your home after your death, which would prevent other beneficiaries from receiving the home.
3. Small Estate Set Aside - A court may allow estates that are worth $20,000 or less to be set aside for the benefit of a surviving spouse or minor children to the exclusion of the beneficiaries named in a Will.

Understanding the impact of the provisions in your estate plan is vital in ensuring that you and your family have a plan that is predictable and that your wishes are ultimately carried out. 

Legal separation between spouses means that the spouses' financial lives are separated without ending their status as a married couple. However, legally, separated spouses are not treated in the same way as a non-legally separated married couple.

Here are some scenarios where legally separate spouses and non-legally separated spouses may be treated differently:

1. A legally separated spouse may not inherit from his or her spouse through intestate succession. In this context a "surviving spouse" does not include a legally separated spouse.
2. Certain rights afforded a spouse after the death of the other such as temporary use of a family home, establishment of a probate homestead, and family allowances are not available for legally separated spouses.

Although in some respects legally separated spouses and non-legally separated spouses are treated differently, in others, there is no effect. For example, if one spouse names his or her spouse as a beneficiary of a retirement account, legal separation does not affect the survivor even though they were legally separated at the time of death. The survivor would still inherit the retirement account.

Likewise, joint tenant assets are not affected as a result of legal separation, nor does legal separation affect a bequest in a Will from one spouse to another from whom they are legally separated.