If you are entering a marriage or remarriage with significant assets, children from a prior relationship, business interests, inherited property, or a clear vision for your legacy, you may have been told that you need a will, a trust, or a marital agreement. These documents are often discussed together, but they serve different purposes. Treating one as a substitute for another can leave gaps in your planning that may not be discovered until it is too late to correct them.
More Californians are entering marriage with retirement accounts, real estate, business interests, inheritances, and blended family responsibilities. As a result, the relationship between marital agreements and estate planning has become increasingly important. A well-designed plan should address not only who receives your assets at death but also what rights a spouse may have during life, upon divorce, or after death. Understanding what each document does — and where California law may override even a carefully drafted will or trust — is an important part of protecting both your loved ones and your intended legacy.
What Wills and Trusts Are Designed to Do
When a married couple wants their property to pass according to their wishes, a will or trust can identify who should receive property, when they should receive it, and how it should be managed or distributed. A trust can offer additional benefits by helping manage property if either spouse becomes incapacitated (unable to manage their affairs) and by allowing trust-owned assets to avoid California’s court-supervised probate process at death.
For many couples, a will or trust may be sufficient when the couple’s wealth was accumulated together, both spouses share the same intended beneficiaries, and the primary beneficiaries are children of the marriage. In those circumstances, traditional estate planning documents can often accomplish the couple’s goals without a separate marital agreement.
When a Will or Trust May Not Be Enough
In some situations, a will or trust alone may not fully carry out a married person’s wishes. One spouse may bring significant separate assets into the marriage and want those assets to pass to someone other than the surviving spouse — children from a prior relationship, other family members, or a charity with a longstanding place in their life.
However, your will or trust does not operate in a vacuum. In California, marriage itself changes the legal character of what you own, and the law provides protections for a surviving spouse that can override your documents in ways many people do not anticipate.
How California’s Community Property Rules Shape Your Plan
California is a community property state. In general, most assets acquired during the marriage — other than gifts and inheritances — belong to both spouses equally, regardless of whose name is on the title or who earned the income. Each spouse can generally leave their one-half of the community property, along with their separate property, to whomever they choose. Neither spouse can give away the other’s half.
On paper, that division sounds tidy. In practice, the lines can blur over the course of a marriage. Separate funds may be commingled with joint accounts. The community can acquire an interest in a home purchased before the wedding when mortgage payments come from earnings during the marriage. Couples who move to California from another state bring quasi-community property rules with them. After years together, the question of what is truly yours to leave can be far less clear than it appears — and a plan built on assumptions rather than a clear record may not hold up when it matters.
The Omitted Spouse Problem
California law also protects a spouse who was left out of older documents. If you marry or remarry after signing your will or trust and never update it, your new spouse may qualify as an omitted spouse — entitled by statute to a share of your estate, generally including one-half of your community and quasi-community property and a portion of your separate property, regardless of what your documents say. The law presumes the omission was an oversight rather than a decision.
There are exceptions. The share generally does not apply if your documents show the omission was intentional, if you provided for your spouse outside the estate plan, or if your spouse validly waived those rights in a signed agreement. That last exception is where the marital agreement enters the picture.
How a Marital Agreement Fills the Gap
A marital agreement — most often executed before marriage as a prenuptial agreement, though postnuptial agreements signed after marriage serve a similar purpose — is a contract between two people that defines how property will be owned and characterized during the marriage and what rights each spouse has to the other’s property in the event of death or divorce. Under California law, a properly prepared agreement can also include a waiver of the rights a surviving spouse would otherwise hold, helping your estate plan operate as written.
What a Marital Agreement Actually Covers
A well-drafted marital agreement typically addresses the following:
- The nature and extent of the property each spouse is bringing into the marriage
- How property will be characterized and divided if the couple divorces or one spouse dies during the marriage
- The extent to which each spouse may leave their property to children from a prior relationship, to charities, or to other beneficiaries through their estate plan
- The waiver of certain spousal rights that would otherwise automatically apply under California law, such as omitted spouse protections or claims to particular assets
Why would a spouse voluntarily give up rights the law provides? In many cases, both spouses want clarity about what will remain separate and what will be shared. One spouse may agree to a waiver in exchange for a similar waiver from the other. This can be especially meaningful in a remarriage, where each spouse may want to protect children from a prior relationship, inherited assets, family business interests, or long-standing charitable commitments.
Rather than signaling a lack of trust, a marital agreement can provide transparency and greater certainty for both spouses — clearly defining what each person is entitled to, what each person is giving up, and how their respective estate plans should operate.
Can a Marital Agreement Be Changed Later?
A marital agreement does not permanently lock either spouse into a fixed arrangement. Both spouses can retain the ability to leave property to each other through gifts or their estate plans, and if circumstances change and both agree, the agreement can be revisited. What it provides is a clear starting framework — resolving the uncertainty about property rights that marriage would otherwise leave to default rules.
Should You Consider a Marital Agreement?
A marital agreement deserves serious consideration if any of the following apply:
- You are marrying or remarrying and want to keep specific assets separate from your spouse’s.
- You want to keep your estate plan from being disrupted by the rights your new spouse would automatically hold under California law.
- You want your property to pass to your children, a charity, or someone other than your spouse when you die.
- You want to define what property each spouse would receive in the event of divorce.
- You and your spouse each want protection from the other’s individual debts, such as business obligations.
- You want clarity about financial responsibilities during the marriage.
Wills, trusts, and marital agreements are not competing documents. They are complementary tools that work best when designed together. A will or trust states what you want to happen to your property. A marital agreement defines the legal framework within which those wishes can actually be honored. Making sure they work in concert — with each other and with California’s community property rules — is a matter of careful design, and one that rewards getting it right the first time.
Frequently Asked Questions:
Does a prenuptial agreement replace a will or trust? No. A marital agreement defines property rights and characterization between spouses; a will or trust directs where property goes and how it is managed. They are designed to work together, and gaps can appear when one is treated as a substitute for the other.
Can I leave my spouse out of my estate plan in California? Generally, a surviving spouse keeps their one-half of the community property no matter what your documents say, and a spouse married after your documents were signed may have omitted spouse rights. A valid written waiver in a marital agreement is generally how spouses consent to a different arrangement.
Is it too late to put an agreement in place after the wedding? No. A postnuptial agreement can serve a similar purpose. Agreements between spouses are held to careful legal standards, so thoughtful preparation matters, but marriage does not close the window.
What happens if I remarry and never update my estate plan? Your new spouse may be entitled to a statutory share of your estate as an omitted spouse, and outdated beneficiary designations may direct assets in ways you no longer intend. A remarriage is one of the clearest signals that a plan needs review.
Schedule Your Right Fit Conversation
Whether you are preparing for a marriage, planning after a remarriage, or making sure a marital agreement and your estate plan work together, the Janet L. Brewer team is here to help. Your Right Fit Conversation is a 30-minute getting-to-know-you meeting designed to help us understand your situation and determine whether our firm is the right fit for your needs.
Call us at (650) 325-8276 or complete our online contact form to schedule your meeting.
