The Problem of the Omitted Spouse

I have previously discussed the order in which an estate is distributed when a person dies intestate, without a will. As a corollary to that post, I thought I would discuss the issue of what occurs when there is an Estate Plan in place, but a spouse is left out, or omitted.

Omitted Spouse is the term used to refer to a spouse that is not mentioned in the will or trust in place at the testator's death. The California Probate Code treats omitted spouses differently depending on when the marriage occurred.

If the decedent fails to provide for the surviving spouse who married the decedent after the execution of the relevant testamentary documents, then the omitted spouse is essentially treated as though the decedent died intestate. The omitted spouse who marries decedent after is entitled to:

  • 1/2 of the community property that belongs to the decedent (community property is everything acquired during the time of marriage except for that acquired by gift, bequest, or devise)
  • 1/2 of the quasi community property that belongs to the decedent (property that relevant statutes or courts decide to treat as community property); and
  • A share of the separate property equal in value to that which the spouse would have received if the decedent died intestate, but in no event more than 1/2 the value of the separate property in the estate.

The Probate Code then addresses the situations in which an omitted spouse will receive no share:

  • If the decedent's failure to provide for the spouse in the testamentary documents was intentional, and the intention appears from the testamentary documents.
  • If the decedent provided for the spouse by transfer outside of the estate planning by the decedent's testamentary documents, and the intention that the transfer be in lieu of the provision in those documents is shown by statements of the decedent or from the amount of the transfer or by other evidence.
  • The spouse made a valid agreement waiving the right to share in the decedent's estate.