If you have a valid Will, you can choose to give your separate property and your share of the community property to someone other than your spouse. However, your surviving spouse does have certain rights. For example:
- A surviving spouse is entitled to a life estate in the homestead, even if it is the separate property of the deceased spouse and it was left to someone else.
- The surviving spouse is entitled to be reimbursed for any community funds expended on the deceased spouse’s separate property, or for any of the surviving spouse’s separate funds that were expended on the couple’s community property or the deceased spouse’s separate property.
- The surviving spouse is also entitled to an allowance equal to one year of living expenses.
- Additionally, if the deceased spouse has a retirement plan governed by ERISA, the surviving spouse is entitled to the proceeds of that plan unless he or she has signed a waiver during the marriage.