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Separate property: If the decedent dies intestate, under Probate Code 6401(c), one-third of the separate property goes to the surviving spouse. Otherwise, with respect to separate property, the owning spouse may dispose of separate property subject only to liabilities to creditors, and statutory protections to surviving spouses such as family allowances.


Community property: Under California Probate Code 6101(b) the decedent spouse has testamentary power over the half interest they possess in the community estate. Item theory determines the rights of the surviving spouse. As you recall, aggregate theory is used to divide the community at divorce.


Item theory and Election doctrine: Under item theory, the surviving spouse has an undivided half interest in every item belonging to the community. The decedent cannot defeat the ownership interest in each item. The surviving spouse thus has an election to accept a will that disposes of items. The will is thus an offer and nothing more, which the spouse can accept or reject. Wills are interpreted by courts to avoid elections where possible. If the will labels community property as separate and makes a disposition, the surviving spouse must make an election. This is true even if the testator made ...

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