Defining "Spouse" for Intestate Succession

Creating a will and/or trust during your lifetime is the best way to ensure that your assets are allocated in accordance with your preferences and wishes. But if a will does not exist, the state has a detailed body of rules governing the disposal of your property. Known as the laws of intestate succession, these rules generally distribute property in line with the degree of closeness of your living relatives. In most cases, determining who is a spouse or child for the purpose of allocating property is not difficult. But in some contexts, it is important to understand how the state defines certain family members in order to establish their inheritance rights.

A surviving spouse who is eligible to inherit under state law must have been legally married to the deceased at the time of death. If the couple had a divorce decree at the time of death, the surviving individual is no longer considered a spouse. In California, if a couple is legally separated, then the living spouse is not entitled to inherit property. In other states, a court may need to rule on whether the remaining spouse is entitled to an inheritance when there is a separation.   

In cases of same-sex couples, a surviving spouse living in a state that recognizes same-sex marriage has the same inheritance rights under intestate laws as any other spouse. In states that do not permit same-sex marriages, couples that have chosen to enter into a registered domestic partnership or civil union generally have the same inheritance rights as married couples. In California, registered domestic partners are given the same legal treatment in this area as married individuals.    

Inheritance rights for individuals in common-law marriages also present some uncertainty. A common law marriage exists when a couple who did not have a marriage ceremony, but live together and present themselves as married, are considered legally married under certain conditions. Most states, including California, do not recognize common law marriages; thus, the surviving spouse would not inherit under state law. In states that acknowledge common law marriages, a spouse may have inheritance rights if there is no will.   

Making Changes to Your Contract: Amendments and Rescission

Once a contract is executed, one or both parties may decide to modify its terms for various reasons. Sometimes the parties may even annul the contract altogether. Modification may be in the form of an addition, correction or omission and can address most elements of the agreement. Rescission, on the other hand, has the effect of terminating (rescinding) the agreement either by mutual consent or by operation of the law.  

Amendment. The parties can modify their existing agreements by drafting an amendment. An amendment does not act as a substitute for the entire contract. Rather, an amendment simply modifies the clause that the parties wish to change. Many contracts contain provisions that require all amendments to be made in writing and signed by the parties. While some courts have enforced oral amendments to contracts, it is preferable to draft a written amendment for clarity and reliability. Parties that want to change a substantial number of provisions often elect to restate the entire agreement. When the amendment pertains to a discrete provision, there are several methods that can be used to amend the contract. The parties can visually make additions and omissions through crossing out and adding text. Alternatively, the parties can include a statement providing that the entire clause has been replaced and insert the new clause into the contract. Some contracts simply describe the amended provision in the text.    

Rescission. The parties to a contract may annul the agreement, which has the effect of returning the parties to their positions prior to the execution of the contract. However, contracts cannot simply be cancelled because one party no longer desires to be bound to the agreement. Rather, the court must rule that there is valid grounds upon which to revoke the agreement. Rescission is a remedy that is typically used when a defect exists in the formation of the contract. A court may also order rescission if it obtains the consent of both parties to annul the contract. Under California Civil Code Section 1689, a contact can be rescinded by the parties by consent or under the following conditions: (i) unilateral mistake pertaining to a material provision; (ii) fraud or undue influence; (iii) failure to provide consideration or refusal of a party to perform his promises pursuant to the contract; or (iv) the contract itself is unlawful.