Updated September 5, 2026. Quick answer: California has no spousal elective share to take against a will, because it does not need one: a surviving spouse already owns an automatic one-half interest in community property under Cal. Prob. Code Sec. 21610 and 21611, and a will can only dispose of the decedent’s own half plus any separate property.
What California actually sets out
| What the statute sets out | What it says |
|---|---|
| Cal. Prob. Code Sec. 21610 and 21611 (omitted spouse) | “(a) The one-half of the community property that belongs to the decedent under Section 100. (b) The one-half of the quasi-community property that belongs to the decedent under Section 101. (c) A share of the separate property of the decedent… but in no event… more than one-half the value of the separate property in the estate.” |
| What protects the surviving spouse instead | no elective share exists; a distinct ‘omitted spouse’ protection (for a spouse married after the will/trust was executed and not provided for) gives 1/2 of community property, 1/2 of quasi-community property, and a share of separate property capped at 1/2 |
| Regime type | no elective share; community property |
| Can it be waived | does not apply if the spouse made a valid agreement waiving the right to share in the decedent’s estate (Sec. 21611(c)) |
| Time limit to file | not applicable; the omitted-spouse claim is a probate-contest issue, not a time-limited election |
How it works in practice
- Community property already gives the surviving spouse automatic ownership of half of what the couple earned during the marriage; a will can only dispose of the decedent’s own half plus separate property, so there is no separate election to make.
- Not applicable here: there is no elective share to plan around in the first place.
- Waiver: Does not apply if the spouse made a valid agreement waiving the right to share in the decedent’s estate (Sec. 21611(c)).
- There is no filing deadline here because there is no election to file.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for California specifically, and its own numbers above should be used instead of the calculator’s national default for a California estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above directly against the state’s own official code.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in California is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.