USA – CALIFORNIA Law and Practice Contributed by: Jennifer J. McCall, Matthew Perotti and Ashley E. Huh, Pillsbury Winthrop Shaw Pittman LLP
• be present in the US for at least 31 days during the current year; and • be present in the US for at least 183 days during the three‑year period that includes the current year and the two preceding years. When calculating the 183 days, an individual must count: • all days present in the US in the current year; • one third of the days present in the US in the first year before the current year; and • one sixth of the days present in the US in the sec- ond year before the current year. Despite these rules, the substantial presence test includes a “closer connection” exception. Under this exception, an individual may be treated as a resident of another country if they can demonstrate a closer tax connection to that country. 3. Intestacy and Forced Heirship Laws 3.1 Intestate Succession The consequences of not having a will or living trust are that the decedent’s assets will be distributed according to the intestacy laws of the state where the decedent was domiciled. These laws may direct the distribution of assets in a way that does not reflect the decedent’s personal wishes. Generally, intestacy laws provide that a decedent’s assets pass to the surviving spouse and children. Additionally, as discussed below, some states have “spousal election” rules that allow a surviving spouse to claim a statutory minimum share of the estate. In contrast, in community property states, the decedent can typically dispose only of their one‑half share of the community property. This structure effectively protects the surviving spouse’s ownership interest, regardless of the terms of the decedent’s will. 3.2 Forced Heirship Rules of succession are determined at the state – not federal – level. In general, individuals are free to dis- tribute their assets to anyone they choose through a will or a living (revocable) trust, which functions as a
substitute for a will. Only one state, Louisiana, has a forced‑heirship rule. Some common‑law states have “spousal election” statutes designed to prevent a surviving spouse from being completely disinherited. These laws typically allow the surviving spouse to claim a portion (for exam- ple, one‑third or one‑half) of the deceased spouse’s assets, even if the Will intentionally left the spouse nothing. These rights, however, can be modified or waived by agreement – such as a valid prenuptial or postnuptial agreement – provided the agreement was entered into voluntarily and with fair disclosure. Community‑property states (eg, California, Texas, and Washington) generally do not have spousal‑election statutes, because the surviving spouse already owns half of the community property. Community property consists of any property acquired during the marriage that was not received as a gift or inheritance. If an individual dies without a valid Will or living trust, the state’s intestacy laws govern how the decedent’s assets are distributed. Under most intestacy stat- utes, the spouse and children receive most or all of the estate. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections The characterisation of marital property is determined by state law, as discussed in more detail below. In separate‑property states, each spouse generally owns – and may transfer – the property titled in their own name without needing the other spouse’s con- sent, unless the property is jointly titled or subject to specific state protections (such as homestead rules). In contrast, in community‑property states, one spouse cannot make a gift of community property without the consent of the other spouse. At death, spouses may direct the disposition of their property through a will or a will substitute. If no such estate planning has been completed, state intestacy statutes apply. In community‑property states, intes- tacy rules typically provide that the surviving spouse
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