Can a surviving spouse make a will after the death of the deceased?

In California, a surviving spouse may make a will after the death of their deceased partner. This is called posthumous or “after-death” testamentary disposition and is allowed in California under intestate succession law. While probate courts recognize posthumous dispositions in certain limited circumstances, the court must also determine whether or not the surviving spouse had the capacity to make the will at the time of their partner’s death. When considering whether or not the surviving spouse had capacity, the court must look at the entirety of the circumstances and decide if a reasonable person could have made the will under those circumstances. Factors which may be considered include the surviving spouse’s mental state, any health issues they had, and the support they had while making the will. When the court determines that a posthumous testamentary disposition is valid, the will will be considered as if the surviving spouse had made it while they were living. The surviving spouse can then use the posthumous will to make decisions about the distribution of property and assets in accordance with California intestate succession law.

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Can a surviving spouse make a will after the death of the deceased?

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