Spousal Elective Share Requirements in California

At a glance

What California does instead

California does not create a general elective share or a right to renounce an existing will for a fixed percentage. The complete current Probate Code table of contents has no elective-share, augmented-estate, or will-renunciation chapter. Its death-of-a-married-person rules instead begin with ownership: under §§ 100–101, one-half of community property and one-half of the decedent's quasi-community property belong to the survivor, while the other halves belong to the decedent. That is a division of property at death, not an election against the will.

Section 102 adds a narrower protection for quasi-community property. If a California domiciliary transferred covered property without substantial-value consideration and without the spouse's written consent or joinder, the survivor may require restoration of one-half when the decedent retained possession, enjoyment, income, revocation or consumption power, or when the property was held with survivorship rights. The section excludes life insurance, accident insurance, joint annuities, and pensions from restoration. Restored property belongs to the survivor as though the transfer had not occurred.

The ownership rule does not require an elective-share form. If a court order is useful, § 13650 permits the survivor or a listed representative to petition the superior court for an order confirming property that belongs to the survivor under § 100 or § 101. That spouse-property petition is not an election for a percentage of an elective estate.

What trips people up

• The one-half interest is ownership, not a claim against the will. Calling it an elective share incorrectly suggests that the survivor must choose it and that the decedent owned both halves.
• Section 102 is not an augmented-estate formula. It applies only to specified quasi-community transfers that satisfy every condition in the section, and its remedy is restoration of one-half rather than calculation of a percentage across the decedent's estate.
• An omitted spouse is a different issue. Section 21610 applies only when the spouse married the decedent after all of the decedent's testamentary instruments were executed. It does not create a general election against a will made during the marriage.

Common questions

Can a California spouse file an election against an existing will? No general California elective-share statute authorizes that filing. The relevant statutory starting point is the survivor's ownership under §§ 100–101, with § 102 addressing certain quasi-community transfers.

Does the survivor need a court order to own the statutory half? Sections 100–101 say the half “belongs to” the survivor at death. Section 13650 separately allows a petition asking the court to confirm that ownership when an order is needed for administration or title purposes.

What if the will was signed before the marriage? That fact raises the separate omitted-spouse statute. Section 21610 can provide a share only when the marriage occurred after every testamentary instrument, subject to § 21611's exceptions; it is outside this survey's general elective-share question.

Statutes and sources

The source is the California Legislative Counsel's official bulk publication of the current codes at https://downloads.leginfo.legislature.ca.gov (file pubinfo_2025.zip), accessed 2026-08-02. The paired section rows and text files supplied the current language quoted in the frontmatter.

• California Probate Code, complete table of contents — the full 564-heading index contains no elective-share, augmented-estate, or will-renunciation part, chapter, or article; it separately lists Part 1 on community and quasi-community property at death and Chapter 2 on omitted spouses.
• Cal. Prob. Code §§ 100–101 — one-half ownership of community and quasi- community property at death; amended by Stats. 2016, Ch. 50, Secs. 79–80, effective January 1, 2017.
• Cal. Prob. Code § 102 — restoration of one-half of specified quasi-community transfers, exclusions, and effect of restoration; enacted by Stats. 1990, Ch. 79.
• Cal. Prob. Code § 13650 — optional petition to confirm property passing or belonging to the survivor; enacted by Stats. 1990, Ch. 79.
• Cal. Prob. Code § 21610 — separate share for a spouse omitted from all premarriage testamentary instruments; added by Stats. 1997, Ch. 724, Sec. 34, effective January 1, 1998.
• Cal. Prob. Code §§ 21611–21612 — exceptions and the sources used to satisfy an omitted-spouse share; § 21611 amended by Stats. 2019, Ch. 10, Sec. 3, effective January 1, 2020, and § 21612 added by Stats. 2003, Ch. 32, Sec. 17, effective January 1, 2004.