Short answer: Partly. You can never give away your spouse’s half of the community property — at your death, half of everything earned during the marriage already belongs to them (Prob. Code §100(a)). But your separate property is yours to leave anywhere: California has no elective share. The real dangers run the other way — a spouse you married after signing your documents gets automatic “omitted spouse” rights (§21610), and the only airtight way to change the default rules is a valid written waiver (§§140–147), usually inside a prenup or postnup.
Figures verified against Probate Code §§100–101, 140–147, 6401, and 21610–21611, 2026. This is general information, not legal advice for your situation.
Everything turns on two buckets: community and separate
California is a community property state; that one fact does most of the work here.
- Community property is, broadly, what either spouse earned or acquired during the marriage. At death, §100(a) says half of it already belongs to the surviving spouse — it was never yours to give. Section 101(a) applies the same rule to quasi-community property (out-of-state acquisitions that would have been community property here).
- Separate property is what you brought into the marriage, plus inheritances and gifts received during it (kept separate). This bucket you can leave entirely away from your spouse — to your kids from a first marriage, a charity, anyone.
Run the numbers on a Ventura County couple: a $1.1 million Camarillo house bought during the marriage, plus $400,000 you inherited from your mother and kept in your own account. The house is community property — you control $550,000 of it; your spouse’s $550,000 is untouchable. The $400,000 inheritance is separate property, and every dollar can go to your daughter from your first marriage. That’s the design, not a loophole. (Deciding which bucket each asset sits in — commingled accounts, refinanced houses — is where real cases get fought. See our overview of community property in estate planning.)
What AI gets wrong: California has no “elective share”
Ask a chatbot whether you can disinherit a spouse and you’ll often get an answer about the spouse’s right to “elect against the will” and claim a fixed percentage of the estate. That’s the law in most separate-property states — New York, Florida, most of the East — but not California. The AI is conflating two different protection systems.
California protects a surviving spouse structurally instead: the automatic half of the community and quasi-community property under §§100–101. That protection is built into ownership itself — no will can defeat it, no election is needed. But it ends there. No statute lets a California spouse override a will or trust to claim a share of the decedent’s separate property. A spouse married when you signed your documents, deliberately left out, takes exactly what the documents give them from your separate property: nothing, if that’s what you wrote.
The omitted-spouse trap: marriage after the documents
Now the exception that catches blended families. Marry after your documents were executed and never update them, and your new spouse is an “omitted spouse” under §21610, automatically receiving:
- your half of the community property,
- your half of the quasi-community property, and
- a share of your separate property equal to their intestate share — capped at one-half of the separate property in your estate.
For scale: the intestate spousal share of separate property under §6401 is everything if you leave no children, parents, or siblings; one-half if you leave one child; one-third if you leave two or more. An unamended trust from 2012 plus a 2024 remarriage can quietly redirect a third to a half of your separate property away from the kids you wrote it for.
Section 21611 lists the ways an omitted-spouse claim fails: the omission was intentional on the face of the documents; you provided for the spouse outside the estate plan and intended that as the substitute; or the spouse signed a valid waiver. The mirror-image rule answers this page’s headline question: a spouse married before the documents were signed and deliberately left out has no omitted-spouse claim at all. The statute protects the spouse you forgot to plan around — not the one you planned around on purpose.
Waivers: the only airtight version
If the goal is certainty — typically in a second marriage where both spouses want their own children protected — the tool is a written waiver of spousal rights under Probate Code §§140–147. The requirements have teeth:
- It must be in writing and signed by the waiving spouse (§142).
- It’s enforceable unless the waiving spouse got no fair and reasonable disclosure of your finances, or wasn’t represented by independent counsel (§143(a)). A waiver that misses those marks can still survive under §144’s fallback — fair and reasonable, or adequate knowledge anyway — but that route runs through an unconscionability review at enforcement, exactly the fight you were trying to avoid.
In practice this means a prenup or postnup done properly: full financial disclosure on both sides, each spouse with their own lawyer, no signing on the courthouse steps. Done that way, the waiver can cover community property rights, omitted-spouse rights, and inheritance rights comprehensively — the difference between “probably fine” and “settled.” See how a prenup interacts with a will, and the broader picture of spousal inheritance rights in California.
One honest caveat: retirement plans governed by federal law have their own spousal-rights regime that state documents don’t control. And if a disinheritance plan is really a dispute in the making — a separation, an estranged spouse likely to sue — that fight belongs with a litigator; Eric will refer you to one for free. The planning that prevents the fight is his lane.
Can you completely disinherit a spouse in California?
Not completely. Half of the community and quasi-community property belongs to your spouse automatically at your death (§§100–101) — no will or trust can reach it. Your separate property, though, can be left entirely away from your spouse, because California has no elective share.
Does a surviving spouse automatically get everything in California?
No. A surviving spouse automatically owns their half of the community property, and inherits your half only if your will, trust, or intestacy says so. Under intestacy (§6401) the spouse takes all the community property, but your separate property splits with children, parents, or siblings. With documents, your half goes wherever you direct it.
What is an omitted spouse under Probate Code §21610?
A spouse you married after executing all your wills and trusts, who isn’t provided for in them. The law presumes you never got around to updating, and awards them your half of the community and quasi-community property plus an intestate share of separate property capped at one-half. The claim fails under the §21611 exceptions — intentional omission on the face of the documents, provision outside the plan, or a valid waiver.
Can my spouse waive their inheritance rights?
Yes — by a written, signed waiver under Probate Code §§140–147, almost always inside a prenup or postnup. To be reliably enforceable it needs fair and reasonable financial disclosure and independent counsel for the waiving spouse (§143). It’s the standard structure for second marriages where each spouse’s assets should flow to their own children.
Does California have an elective share for spouses?
No. The elective share — a spouse’s right to override the will and claim a fixed fraction of the estate — is a separate-property-state doctrine that doesn’t exist here. California’s protection is the automatic community-property half under §§100–101; separate property passes exactly as the will or trust directs.
Free guide
Disinheriting Without a War
You can leave someone out. The difference between clean and a courtroom is doing it the way the law recognizes.
The bottom line
California’s answer is cleaner than the internet makes it look: your spouse’s half of the community property is untouchable, your separate property is fully yours to direct, and the traps live in the timing — marry after your documents and the omitted-spouse statute rewrites them for you. If you intend to limit what a spouse receives, say it on the face of the documents; if you want it bulletproof, add a proper §§140–147 waiver. If your marriage, your documents, and your intentions aren’t telling the same story, Talk to Eric.
Sources: Prob. Code §100(a) (surviving spouse owns one-half of community property at death); §101(a) (quasi-community property); §21610 (omitted spouse’s share; separate-property share capped at one-half); §21611 (exceptions); §§140–147 (spousal waivers; §142 writing and signature; §143(a) disclosure and independent counsel; §144 fallback); §6401 (intestate spousal share).
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