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Horizon Elder Law & Estate Planning Blog

Friday, June 9, 2017

Estate Planning and the Spousal Fiduciary Duty

How could the Spousal Fiduciary Duty impact estate planning in California?

When you say “I do” in California, you not only dedicate yourself to your spouse in sickness and in health, but you also become bound by the Spousal Fiduciary Duty.  In California, the law imposes a legal duty on all married people to act with the upmost honesty and fairness towards his or her spouse.  The Family Code specifically states that marriage imposes the duty of highest good faith and fair dealing, preventing either spouse from taking unfair advantage of the other.  Married Californians should be aware of the Spousal Fiduciary Duty as it can impact your estate plan.  

Managing the Funds of Your Incapacitated Spouse

Under California law, either spouse has the power to manage the couple’s community property.  Both spouses must continue to abide by the Spousal Fiduciary Duty, and accordingly must manage the community property in good faith.  While either spouse acting alone can manage the couple’s community property, each spouse’s separate property remains in their sole control.  

If one spouse becomes incapacitated, the other spouse will be unable to manage the incapacitated spouse’s separate property, absent a court order.  To avoid this dilemma, married couples should create an estate plan that authorizes either spouse to control the other’s property if either becomes incapacitated.  Advance planning can prevent much stress and delay in the unfortunate event a spouse is incapacitated.  

Creating a Will or Trust that Reflects Your Wishes

The Spousal Fiduciary Duty prohibits either spouse from exerting undue influence on the other.  This duty transcends into the realm of estate planning.  When creating a will or trust, neither spouse can coerce the other into making an estate plan that does not truly reflect their wishes.  For example, a spouse could not coerce their partner into disinheriting a child from a previous marriage in favor of the spouse and the couple’s own children.

Take the time now to create a thorough estate plan that will protect your entire family.  With advance planning, you can ensure your spouse and your children are secure no matter what the future holds.  Contact a California estate planning attorney today to get started protecting your legacy.  


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