UPDATED 2/21/18

A prospective client asked me this question the other day and I said I didn’t know the answer off hand. Sort of funny that I didn’t know as I have been doing this since 1994. That is, I have focused my law practice on estate planning, trust and probate law for all these years. During that time I have been asked some pretty arcane questions so you would think a straightforward question would be easier to answer. Not always….

The first question is will or no will!?

That is, if a person has a will and their marriage ends by divorce any provision to the ex-spouse is nullified by the divorce. That is, the ex gets nothing just like most people would want.  See California probate code section 6122 below.  In particular look at section (d). It very clearly indicates that the key is to look at the legal separation paperwork.  See California state form FL-100. This is the petition for dissolution OR legal separation.

Also, look at probate code 78 (pasted below). It defines “surviving spouse” (the key component in many inheritance laws) and clearly does NOT specify legal separation.

I previously concluded that I thought a legally separated individual could inherit from their “ex” spouse after death.  However, recently I bumped into the estate of Clarence G. Lahey (Lahey v. Bianchi) Estate of Lahey, 76 Cal.App.4th 1056 (1999).  In that case the California Court of Appeals held that the widow, who had obtained a judgment of legal separation, did not qualify as a “surviving spouse” with regards to intestate succession.  Look that case up!

Good luck to you!  -John

California Probate Code 6122. (a) Unless the will expressly provides otherwise, if after executing a will the testator’s marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
(1) Any disposition or appointment of property made by the will to
the former spouse.
(2) Any provision of the will conferring a general or special
power of appointment on the former spouse.
(3) Any provision of the will nominating the former spouse as
executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked
solely by this section, it is revived by the testator’s remarriage to
the former spouse.
(c) In case of revocation by dissolution or annulment:
(1) Property prevented from passing to a former spouse because of
the revocation passes as if the former spouse failed to survive the
testator.
(2) Other provisions of the will conferring some power or office
on the former spouse shall be interpreted as if the former spouse
failed to survive the testator.
(d) For purposes of this section, dissolution or annulment means
any dissolution or annulment which would exclude the spouse as a
surviving spouse within the meaning of Section 78. A decree of legal
separation which does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(e) Except as provided in Section 6122.1, no change of
circumstances other than as described in this section revokes a will.
(f) Subdivisions (a) to (d), inclusive, do not apply to any case
where the final judgment of dissolution or annulment of marriage
occurs before January 1, 1985. That case is governed by the law in
effect prior to January 1, 1985.

California Probate Code 78. “Surviving spouse” does not include any of the following:
(a) A person whose marriage to the decedent has been dissolved or
annulled, unless, by virtue of a subsequent marriage, the person is
married to the decedent at the time of death.
(b) A person who obtains or consents to a final decree or judgment
of dissolution of marriage from the decedent or a final decree or
judgment of annulment of their marriage, which decree or judgment is
not recognized as valid in this state, unless they (1) subsequently
participate in a marriage ceremony purporting to marry each to the
other or (2) subsequently live together as husband and wife.
(c) A person who, following a decree or judgment of dissolution or
annulment of marriage obtained by the decedent, participates in a
marriage ceremony with a third person.
(d) A person who was a party to a valid proceeding concluded by an
order purporting to terminate all marital property rights.