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New Bill Proposes Pro-LGBT changes to CA Probate Code

Same sex estate plan attorney sf east bay

Modernizing California Probate Code to Reflect Marriage Equality

While attorneys are familiar with the terms “probate code” and “civil code,” most people are not. The probate code in California governs everything related to probate, including trusts and estates and elder law. 

As you can imagine, much of probate law makes reference to married couples. As a community property state, California property and assets frequently pass to the remaining spouse when someone dies. As it stands now, California probate code uses the terms “husband” and “wife” to refer to married couples. 

In February of this year, Senator Hannah-Beth Jackson introduced a new law, SB 1005, that would change the language to make it gender neutral. In sections of the probate code with important implications for married couples, the word “spouse” would replace “husband” or “wife.” 

With marriage equality now being recognized on a national level, it is only fitting that the law be updated to reflect that equality. SB 1005 will replace the words “husband” and “wife” with “spouse” in seventeen different sections of the California probate code. In addition, SB 1005 will also modify language to include registered domestic partners under the definition of “Spouse.” 

Why has California taken so long to update probate laws to reflect marriage equality?

The California Supreme Court officially recognized marriage equality in May of 2008. Under the California Constitution, same-sex marriage was deemed legally valid. However, the law was repealed in November of that same year when voters approved Proposition 8. Same sex couples in California would have to wait two more years before the Supreme Court would eventually uphold Proposition 8 as unconstitutional, and marriage equality would become law once again. 

In 2014, California approved updates to the Family law codes with SB 1306 to reflect gender neutrality. With last year’s Supreme Court decision to uphold same sex marriage across the nation in Obergefell v. Hodges, it was high time for California to update the probate code as well. Laws generally move through the house and senate at a slow pace, and as such it has taken several years to put together an update to the probate code. Hopefully, SB 1005 will be passed swiftly and changes made within the year.

When it comes to proper estate planning, specificity is crucial. Room for interpretation in estate plans, let alone the probate code, opens doors to potential litigation. By implementing SB 1005, California will not only be adjusting code language to reflect gender neutrality, it will ensure that fewer probate litigation cases will come before its courts. 

If you have questions about Estate Planning or Probate for married couples, call my Estate Planning firm in downtown Walnut Creek for your consultation. 925-322-1795

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