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Protection of Surviving Spouse
COMMUNITY PROPERTY
California does not use forced share provisions since the surviving spouse is protected in that California is a community property state. Cal. Fam. Code § 760 (West 2000); Cal. Prob. Code § 28 (West 2000). Upon decedent's death half of the community property belongs to the surviving spouse unless there is an agreement beforehand to a non pro rata split. Cal. Prob. Code § 100 (West 2000). A spouse that is not domiciled in California has the right to a forced share of real property as they would have received in the other state. Cal. Prob. Code § 120 (West 2000).
HOMESTEAD PROVISIONS
The court may, on petition, set apart a homestead for use by the surviving spouse or the minor children of the decedent.
The first preference for the homestead share will be to the community and quasi-community property of, or property owned in common by, the
decedent and the person entitled to have the homestead set apart. In no case will the probate homestead be selected out of property with whom the right of possession is in a third person.
Cal. Prob. Code §§ 6520-6528 (West 2000).
EXEMPT PERSONAL PROPERTY
Until 60 days after the inventory is filed, unless otherwise ordered by the court,
the decedent's surviving spouse and minor children are entitled to remain in possession of the family
dwelling, and the wearing apparel of the family, the household
furniture, and the other property of the decedent are exempt from
enforcement of a money judgment. Cal. Prob. Code § 6500 (West 2000).
After the inventory has been filed, the court may set apart all or any part of the property of
the decedent exempt from enforcement of a money judgment to the surviving spouse or minor children.
Cal. Prob. Code § 6510 (West 2000).
FAMILY ALLOWANCE
There are several classes of people for whom a family allowance may be set aside if necessary for their maintenance
according to their circumstances during administration of the estate. These people are the surviving spouse,
minor children, and adult children who are physically or mentally incapacitated from earning a living and were actually dependent in
whole or in part upon the decedent for support. The court may also use its discretion to set aside a family allowance for other adult children and dependant parents.
Cal. Prob. Code § 6540 (West 2000).
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