Elective Share: Definition and How It Works in California

By Eric Ridley, attorney, Ridley Law. Updated September 2026.

An elective share is a surviving spouse’s right, in many states, to claim a set share of a deceased spouse’s estate regardless of the will. California has no elective share. A surviving spouse here is protected instead through community property law and a set of statutory rights that apply no matter what the documents say.

How it works in California

California never adopted an elective share statute. That’s why a spouse can’t simply demand a percentage of the estate when the numbers don’t work in their favor; the question of whether a will or trust can disinherit a spouse in California turns on other rules, not on an election against the estate.

The first layer of protection is community property. Under Prob. Code, § 100, half of the couple’s community property already belongs to the surviving spouse the moment the other spouse dies. That half was never the decedent’s to give away, so no will or trust provision can reach it.

The second layer covers a spouse the documents never accounted for. Under Prob. Code, § 21610, a spouse married after a will or trust was signed and left out of it receives a share of the estate unless the omission looks intentional. This isn’t an election against the whole estate; it’s a fix for a document that never caught up to the marriage.

A surviving spouse also has short-term rights that don’t depend on the will or trust at all: a family allowance for living expenses while the estate is administered under Prob. Code, § 6540, a right to stay in the family home for 60 days after the inventory is filed under Prob. Code, § 6500, and, in some cases, a probate homestead in that home under Prob. Code, § 6520.

Why it matters

For example, a husband writes a will years before his second marriage and never updates it. His wife assumes she can elect against the estate the way a friend in another state did. She can’t, because California has no such right. What she has instead is her half of the community property outright, plus an omitted-spouse claim on the rest of the estate if the omission wasn’t intentional. The result can look similar to an elective share, but it comes from a different set of statutes, and a family that assumes the wrong one applies can miss a deadline or the right filing.

Common mistakes

Assuming California works like an elective-share state and skipping the community property and omitted-spouse analysis entirely. Confusing the 60-day right to remain in the home with a right to inherit it. Treating a family allowance as a distribution from the estate rather than a temporary support payment that gets accounted for later.

Related terms

• Anti-lapse statute: another California rule that redirects a gift by statute instead of letting it fail, though this one protects a predeceased beneficiary’s descendants, not a spouse.
• Community property: the main reason California doesn’t need an elective share; a spouse already owns half of it.
• Omitted spouse: the statutory claim that fills the gap when a spouse married after the documents were signed was never added to them.

Part of the California estate planning glossary. For the full treatment, see Can You Disinherit Your Spouse in California?