For a parent who remarries, deciding who will inherit the family home can be complicated. A father may want his wife to remain there after his death while ensuring that his children from an earlier marriage eventually inherit his interest. Leaving it outright to his wife gives her control over its future, while leaving it directly to his children could jeopardize her ability to stay.
An estate plan can address both concerns by setting clear terms for the spouse’s use of the home and the children’s future inheritance.
California’s Default Rules Might Not Match Your Wishes
When someone dies without a Last Will and Testament, California’s intestate succession laws determine who receives the probate assets. Under Probate Code Section 6401, a surviving spouse receives the deceased spouse’s share of community property. The spouse’s share of separate property depends on which other relatives survive.
Biological and legally adopted children generally have inheritance rights under intestacy. Stepchildren do not ordinarily inherit simply because the stepparent helped raise them.
Documents signed before remarriage also deserve review. California’s omitted-spouse laws can provide an inheritance to a spouse who married the deceased person after all applicable testamentary instruments were signed, unless an exception applies.
Determine What Each Spouse Owns
California generally treats property acquired during marriage as community property. Assets owned before marriage or received by gift or inheritance are generally separate property, although mixed funds can complicate ownership.
A spouse can generally direct the disposition of their separate property and share of community property, not the other spouse’s share. Documenting how assets were acquired and titled helps establish what each person can leave.
Use a Trust to Provide for a Spouse and Children
A properly structured living trust can allow a surviving spouse to remain in the home while directing the deceased spouse’s interest to their children afterward. Preserving that inheritance requires specifying which provisions become irrevocable at the first death and what authority the survivor retains.
For the father’s plan to work, the trust should explain who pays the mortgage and repairs, whether his wife can move, and what happens if she needs assisted living. Without clear instructions, the spouse and children could disagree about expenses or selling the property.
Leaving the home to children also requires property-tax planning. Under Proposition 19, preserving its existing taxable value generally requires a qualifying parent’s principal residence to become a qualifying child’s principal residence, subject to value limits and filing requirements. The spouse’s right to remain should be reviewed alongside those rules.
Coordinate Beneficiary Designations
Life insurance, retirement accounts, and payable-on-death accounts usually pass by beneficiary designation rather than by will. Updating the trust without reviewing those forms can undermine the plan.
An adult child might remain the sole beneficiary of an account intended to support the new spouse. The outcome depends on the account type and spousal rights. For instance, some employer retirement plans require spousal consent to name another beneficiary.
Who Should Make Decisions for the Family?
A trustee may need to balance the surviving spouse’s needs against the children’s future inheritance. Naming one spouse’s child can create tension, making a neutral trustee worth considering.
Powers of attorney and health care directives should also identify who will act during incapacity, particularly when a spouse and adult children disagree.
Keep the Plan Aligned With Your Family
Remarriage, divorce, or a major property purchase can change how a plan operates. Reviews should include account ownership and beneficiary designations.
JPS Law Offices can help protect a spouse’s ability to remain in the home while establishing clear terms for children’s inheritances. Contact JPS Law Offices to discuss your family’s priorities.
