7 Estate Planning Risks for Family Law Attorneys
We love working with newlyweds at De Fonte Law PC! Most of them do not have prenups, and much of what follows applies to them as they have not had a chance to create community property yet. They are as vulnerable to unintentional disinheritance as are couples with carefully crafted prenups and postnups.
Family law attorneys draft prenuptial agreements to protect clients in divorce. But many clients and some professionals assume a prenup also controls what happens at death.
In California, that assumption is incorrect.
A prenuptial agreement does not replace a will or trust. It is not a testamentary document. But a prenup can create chaos, resulting in unintentional disinheritance of both community and separate property.
If there is no estate plan, the California Probate Code controls inheritance. And this means that a surviving spouse could have to share an inheritance of separate property with their in-laws or with their minor child. It might also mean that they do not inherit any of their spouse’s community property.
This gap between prenup drafting and estate planning is where unintentional disinheritance happens.
Below are seven critical issues every California family law attorney should understand.
1. Does a Prenup Control Inheritance in California?
No.
A prenuptial agreement is a contract between spouses. It:
- Defines separate and community property
- Allocates property rights in divorce
- May include waivers of inheritance rights
It is not a testamentary document.
- It does not function as a will.
- It does not transfer property at death.
- It does not override intestacy.
If a married person dies without a will or trust, the California Probate Code determines who inherits.
The waiver is a danger zone – do the clients truly wish to disinherit each other? I have not worked with a couple with a prenup or postnup who did not want their spouse to receive 100% of their assets on death. The scenario is much different – I ask them, “Who inherits your estate if you die happily married?” The answer so far has always been “My Spouse”.
2. What Happens to Separate Property Under California Intestacy?
This is where most surprises occur.
Under California intestacy law:
- Community property → 100% to surviving spouse (if there is no waiver in the prenup/postnup)
Separate property passes as follows:
- Decedent has one child → ½ to spouse / ½ to child
- Decedent has or more children → ⅓ to spouse / ⅔ to children
- Decedent has no children but living parents → ½ to spouse / ½ to parents
- Decedent has no children or parents but siblings → ½ to spouse / ½ to siblings
Imagine that the Decedent owned the family home and the couple has a minor child. In this scenario, the surviving spouse now owns a home with a minor child. Because they are not automatically granted authority over the child’s assets, they must now go through an expensive and lengthy court process to gain authority, and even then, they might need leave of court to refinance or sell the property.
3. How Do Prenups Create Unintentional Disinheritance Risk?
Clients with prenups often have:
- Pre-marital real estate
- Family wealth
- Business interests
- Inherited assets
They assume the prenup “protects” their spouse at death. In reality, the prenup confirms ownership; it does not direct distribution. If there is no will or trust, separate property passes under intestacy. That is how a surviving spouse can receive less than intended.
The agreement did not fail. The estate planning coordination was missing.
4. What Happens If Community Property Rights Are Waived in a Prenup?
In California, a surviving spouse typically inherits 100% of community property. A prenup may include a waiver of inheritance rights, including rights to community property. But a waiver only prevents a claim. It does not create a distribution plan.
If spouses waive rights and fail to execute a will or trust, intestacy fills the vacuum. Waiver without coordinated estate planning can create ambiguity, conflict, and litigation exposure.
Prenup = contractual limitation.
Estate plan = distribution instructions.
Both are required for clarity.
5. Do Beneficiary Designations Override a Prenup?
Yes.
Retirement accounts and life insurance pass by beneficiary designation.
If a spouse is named beneficiary, the asset passes automatically.
If the spouse is not named, it does not pass, regardless of marital status.
A prenup does not override beneficiary designations.
Without coordination, assets may pass inconsistently with the couple’s overall intent.
6. Does a Prenup Address Incapacity Planning?
Usually not.
Most prenuptial agreements do not address:
- Health care decision-making authority
- Financial powers of attorney
- Control of separate property upon incapacity
Without updated estate planning documents, incapacity may require court intervention.
Divorce planning protects clients during separation.
Estate planning protects them in incapacity and death.
Both are essential.
7. Why Estate Planning Referral Is Risk Mitigation for Family Law Attorneys
Family law attorneys are often the only lawyers involved at marriage.
If a client has:
- A prenuptial or postnuptial agreement
- Separate property
- Community property waivers
- Living children, parents, or siblings
Then estate planning coordination is not optional.
Without a will or trust, the California Probate Code writes the distribution plan.
And statutory defaults rarely reflect intent.
Early referral protects:
- Client expectations
- The integrity of the prenup
- Litigation exposure
- Professional relationships
The Bottom Line: Prenup vs. Estate Plan
A prenuptial agreement sets guardrails.
An estate plan directs distribution at death.
In California, one does not replace the other.
Without coordinated planning, unintentional disinheritance is not a drafting error; it is a structural gap.
If you draft prenuptial agreements in California, estate planning referrals should be part of the engagement strategy.
It is not an add-on.
It is risk mitigation.
We created an ungated downloadable chart, “What Happens to Property at Death in California? A Client Handout for Individuals with Prenuptial or Postnuptial Agreements,” which you can share with clients to clearly explain how property is inherited by spouses in California.
