Short answer: California treats married same-sex couples exactly like any other married couple for estate planning purposes. That means the unlimited marital deduction between spouses (Internal Revenue Code § 2056(a)) and the option for a surviving spouse to add a deceased spouse’s unused federal estate tax exemption to their own through portability (Internal Revenue Code § 2010(c)). None of that happens automatically just because a couple is married. It still takes a signed will, and usually a living trust, to put those protections to work and to say who actually receives what.
Does getting married change what we need to plan for?
Marriage gives a surviving spouse rights an unmarried partner does not have. In California, community and quasi-community property passes entirely to a surviving spouse when there is no will, and separate property gives the surviving spouse at least a share, with the exact portion depending on who else survives (Probate Code § 6401). Marriage also opens the federal marital deduction, so one spouse can leave an unlimited amount to the other without gift or estate tax, and lets a surviving spouse’s executor elect portability of whatever federal exemption the first spouse did not use (Internal Revenue Code § 2010(c)). None of this replaces a will or trust. It only sets the default rules that apply when a couple has not written their own.
What happens to my partner if we are not married, or only one of us is a legal parent?
If a couple is not married, California’s intestate succession statutes control who inherits when someone dies without a will, and an unmarried partner generally inherits nothing under those statutes (Probate Code §§ 6401 and 6402). The estate instead passes to the decedent’s children, then parents, then siblings, moving outward through a fixed order of relatives (Probate Code § 6402). A stepchild who was never legally adopted is treated the same way under intestate succession: nothing (Probate Code §§ 6401 and 6402). For unmarried couples, and for families where only one partner is a legal parent, a will or living trust is not optional. It is the only way to direct where assets actually go.
How does a living trust work for a same-sex couple in California?
A living trust does the same job for a same-sex couple that it does for any Californian: it lets assets pass to the people the couple actually chooses, outside of probate, as long as the trust is signed and the assets are retitled into it. A will alone does not skip probate. It only becomes effective once a court validates it through the probate process. A trust that is never funded, meaning the house, accounts, and other assets are never retitled in the trust’s name, does not avoid probate for whatever was left out. For a married couple whose assets are community property, both halves of an asset receive a step-up in income tax basis when the first spouse dies, not just the deceased spouse’s half as would happen under joint tenancy (Internal Revenue Code § 1014(b)(6)). Holding community property in a properly funded trust does not change that basis rule, but it does keep the transfer out of probate. A no-contest clause can also be added to a will or trust to discourage a family member who was left out from challenging the plan in court.
What about health care and financial decisions if one partner cannot act?
Health care and financial powers of attorney matter for every couple, but they carry extra weight for unmarried partners and for couples whose relationship a hospital or bank might not recognize on sight. Without a signed health care power of attorney, decision-making authority in a medical crisis defaults to whoever the law or the hospital treats as next of kin, which may not be the partner the person actually wants making those calls. A durable financial power of attorney lets a partner step in to pay bills, manage accounts, and handle property if the other becomes unable to do so. These documents do not depend on marital status to work. They depend on being signed, properly executed, and available when they are needed.
Does adoption or a parentage judgment matter for our kids?
For same-sex couples raising children, especially when only one partner is the biological or original adoptive parent, establishing legal parentage for the other partner protects the child’s inheritance rights and keeps custody and guardianship decisions from becoming a dispute if something happens to the legal parent. A second-parent adoption or a parentage judgment accomplishes that. Naming a guardian in a will is a separate step and does not, by itself, establish legal parentage. Both matter, and they do different jobs.
Figures verified July 2026.
What to do next
Whether you are married, unmarried, or raising children together, sit down and identify exactly which documents you have and which you do not: a will, a living trust if one fits your situation, health care and financial powers of attorney, and, if it applies, a second-parent adoption or parentage judgment. An estate planning attorney can review what you already have and tell you plainly what is missing.
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