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The decedent spouse has testamentary power over his one-half of the community property. When the dissolution is by death, the item theory predominates. The item theory holds that the surviving spouse is the owner of an undivided half interest in every item of community property. The decedent cannot defeat the item theory by use of a will even if he disposes of no more than his half of the community estate by value. Some community items are incapable of transmission to third parties (goodwill in a legal practice). The courts could use the aggregate theory or apply the terminable interest rule to those assets incapable of transmission to third parties. An attempt by the decedent to dispose of community property puts the surviving spouse is put to an election. The will is treated as an offer to contract and will be accepted if the surviving spouse permits the will to dispose of property not owned by the decedent. Wills are generally interpreted to avoid an election where possible.


The law presumes that the decedent intends to devise or bequeath only what he owns. If there are ambiguities in the will they will be resolved against a construction that ...

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