Probate

Divorce and Probate in California: Can an Ex-Spouse Inherit?

By March 27, 2026No Comments
Divorce probate

Table of Contents

Key Takeaways

  • In California, divorce generally cuts off an ex-spouse’s right to inherit through probate.
  • This applies even if the will still names the former spouse as a beneficiary.
  • The law treats the former spouse as if they predeceased the decedent.
  • Court action is often required to enforce these rights and prevent improper claims.

What Happens to an Ex-Spouse’s Rights After Divorce?

Probate Code §6122 Explained

Divorce can directly determine who inherits from a probate estate in California.
Under California Probate Code section 6122, once a divorce is finalized, the law automatically revokes any gifts to a former spouse in a will. The same rule generally applies once a judgment of dissolution or nullity is entered.
In practical terms, the law treats the former spouse as if they died before the decedent. As a result, they do not inherit under the will.
This issue comes up often. A parent passes away, and a former spouse claims a share of the estate as a “surviving spouse.” If the divorce was completed before death, that claim is typically not valid under California law.
At The Grossman Law Firm, we help beneficiaries challenge improper claims and enforce their rights when a former spouse attempts to inherit.

What If the Will Was Never Updated?

A common concern is the effect of an outdated will that was not revised after divorce.
California law addresses this directly.
If the will still names the former spouse as a beneficiary, those provisions are revoked by law after divorce. The court will not follow outdated will language in this situation.
Instead, the estate is distributed as if the former spouse is no longer included. Depending on the will’s terms, this may mean:
  • The gift passes to an alternate beneficiary named in the will, or
  • The property becomes part of the residue and passes to other beneficiaries, such as children.
This rule reflects the likely intent of most individuals after divorce, even if they did not formally update their documents.

Does This Happen Automatically?

Why You Must Raise the Issue

This is where many beneficiaries run into problems.
Although the law revokes a former spouse’s rights, the probate court does not investigate these facts independently. If an ex-spouse files a claim or is listed in the will, the issue may go unaddressed unless someone brings it to the court’s attention.
In other words, the legal rule exists, but it often must be enforced.
If you believe a former spouse is improperly claiming part of a probate estate, it is important to bring that issue before the court. This may involve:
  • Filing an objection in the probate case
  • Presenting evidence of the divorce or judgment of dissolution
  • Asking the court to apply Probate Code section 6122
Timely action can prevent improper distributions and reduce disputes among beneficiaries.

FAQ

Does legal separation have the same effect as divorce in California?

Not automatically. Probate Code section 6122 applies to a final judgment of dissolution or nullity. Legal separation alone may not revoke inheritance rights unless additional facts or court orders apply.

Can an ex-spouse still inherit anything after a divorce?

In most probate situations, no. However, this rule applies to wills. Other assets, such as life insurance or retirement accounts, may be subject to different rules depending on beneficiary designations.

Do children automatically receive everything after a divorce?

Not necessarily. It depends on the will and the overall estate plan. However, once a former spouse is removed under the law, children are often the next in line to inherit.

How The Grossman Law Firm Can Help

Divorce-related probate disputes are more common than many families expect. When an ex-spouse appears in a probate case, the outcome often depends on whether the issue is raised and properly handled.
At The Grossman Law Firm, we help beneficiaries and heirs throughout California enforce their rights in probate and trust litigation. Attorney Scott Grossman handles these disputes and ensures estates are distributed in accordance with California law.
Call (888) 443-6590 or fill out our Get Help Now form. Our Intake Specialists can evaluate your case at no cost to you. Qualifying cases will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.
Originally Published September 14, 2016