What Happens to Your Will When You Omit Your Spouse?

If the testator’s will fails to provide for his spouse, whom he married after he executed his final will, the omitted spouse receives all the community property and her intestate share of the separate property so long as that amount does not exceed one-half  of the value of the separate property in the estate. This statute was designed to protect spouses from being unintentionally omitted from the testator’s estate. CPC § 21610.

In satisfying the omitted’ spouses share, her share will first be taken from the decedent’s estate not disposed of by will.

For example, in 2014, Husband executed a valid will leaving “all my property to my best friend, George.” In 2015, Husband and Wife married. In 2017, Husband died. – In this example Wife is a “predetermined spouse” and is entitled to all of the community property and a share of Husbands’ separate property depending on how many surviving children he left behind. If Husband has only one child, Wife will get half of the separate property. If Husband left two or more children, Wife will get one third of his separate property.

However, there are a few exceptions that are worth knowing. An omitted spouse does not receive her intestate share if any of the following is established:

  • The decedent’s failure to provide for his spouse was intentional and that intention appears from the face of the will;
  • The decedent provided for his spouse by transfer outside of the estate and the intention that the transfer be in lieu of the will is shown by statements of the decedent or from the amount of the transfer: or
  • The omitted spouse made a valid agreement (a premarital agreements) waiving the right to share in the decedent’s estate. CPC § 21611

In summary, California protects souses from being “unintentionally” omitted from the deceased spouse’s estate. However, an omitted spouse does not take her intestate share if the testator’s failure to provide for her was intentional, the testator provided for her by transfer outside of the estate, or the spouse executed a valid premarital agreement waiving her right to share the decedent’s estate.

This is precisely why you should have a will and a premarital agreement in place and when you do, you should review and revise them with your family law attorney periodically to ensure that they reflect your true wishes. Life and circumstances change over time, and your will and your premarital agreement should reflect those changes.

Leave a Reply