Devise of Real Property Clause
(Life Estate to Surviving Spouse) (CA)

Summary

This template is a will clause that gives the testator's surviving spouse a life estate in real property, with remainder to the testator's children. This template is intended for use in California when the testator wants the gift to qualify for the estate tax marital deduction. It includes practical guidance and drafting notes. In California, an ordinary life estate in real property qualifies for the marital deduction because, by statute, the life tenant is entitled to all of the income from the property. See Cal. Civ. Code §§ 732, 748. However, the marital deduction is only available for a surviving spouse, not a registered domestic partner or significant other. It is important to note that the remainder interest does not escape taxation entirely. Rather, the full value of the residence will be taxable in the estate of the surviving spouse on his or her death. See I.R.C. § 2044. This template contains a statement that the testator intends that the interest will constitute a qualifying income interest for life for purposes of the estate tax marital deduction under I.R.C. § 2056(b)(7). The interest would qualify for the deduction without this statement, but it is included to alert the executor, who must affirmatively elect the deduction. See I.R.C. § 2056(b)(7)(B)(v). This provision is unnecessary in the case of property held by the spouses in joint tenancy or as community property with right of survivorship because such property will pass by operation of law to the surviving spouse on the testator's death. For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For more information on wills generally, see Purposes and Uses of a Will (CA) and Requisites, Instrumentation, and Will Provisions (CA). For further discussion of life estates, see Estate Planning Strategies and Devices (CA). For tax considerations, see Tax Considerations in Estate Planning (CA).