What is An Omitted Spouse?

When a spouse dies, the will or trust most commonly provides that their surviving spouse will receive all or most of their property and assets. The presumption that a surviving spouse should receive something is so strong that California law protects the surviving spouse even if they aren’t mentioned in the will or trust. Under California law, such a spouse is considered to be an “omitted spouse.”

California Probate Code for Omitted Spouses

California basic law regarding the treatment of omitted spouses is set forth in California Probate Code sections 21610-12.

Probate Code Section 21610 protects spouses who have not been included in the decedent’s will or trust by providing them a share of the decedent’s community, quasi-community, and separate property. These protections apply when a husband or wife gets married after their spouse signed all of their wills and trusts (sometimes referred to as their “testamentary instruments”), and those documents don’t include the husband or wife. Under these circumstances, California law presumes that the person who created their will or trust would have wanted their surviving spouse to receive property. 

Specifically, section 21610 provides that the omitted spouse will receive the following:

• Half of the community property that belonged to the spouse who died;
• Half of their quasi-community property; and 
• A share of the decedent’s separate property not to exceed half of the separate property in the estate.

The right of an omitted spouse (sometimes also referred to as a pretermitted spouse) is not absolute. California law presumes that omitted spouses should receive a share of community, quasi-community, and personal property, but that presumption can be overcome. Probate Code Section 21611 details what is required to overcome the presumption benefitting the omitted spouse.

Under section 21611, there are three ways in which an omitted spouse will not be protected. First, if the will or trust on its face shows that the decision not to include the spouse was intentional. Second, the omitted spouse entered into a “valid agreement waiving the right to share in the decedent’s estate.” Third, the spouse who passed away provided for their spouse outside of the will or trust. For example, if the surviving spouse is not mentioned in the will or trust but did receive money through an insurance policy or by being named as a beneficiary of a retirement account, the surviving spouse might not be treated as an omitted spouse.  

When the surviving spouse inherits property outside of the will or trust, whether they will receive the protections of an omitted spouse is a question of the deceased spouse’s intent. Section 21611 provides that a range of evidence can be considered–direct and circumstantial–to show that the deceased spouse intended to provide for their surviving spouse outside of the will or trust instead of through the will or trust. This evidence includes statements of the deceased spouse as well as through circumstantial evidence, as such as the amount that was transferred to the surviving spouse. Generally speaking, the more the surviving spouse received through an insurance policy or in other avenues outside the will or trust, the more likely it is that a California court will conclude that the deceased spouse intended to provide for the surviving spouse outside of the decedent testamentary instruments. 

How An Omitted Spouse Can Affect Your Estate Planning Case

The laws protecting omitted spouses are a good example of the law stepping in to supplement what is provided under the terms of a will or trust. Thus, the omitted spouse doctrine can have the effect of slowing down the process of administering a will or trust. An omitted spouse may have rights outside what is written on the face of the testamentary instruments and can go to court to enforce those rights.

Possible solutions

Issues relating to the possible application of the omitted spouse doctrine can be addressed in two phases. First, when an estate plan is being created, and wills and trusts are being drafted or revised, the most straightforward way to avoid complications involving the application of Probate Code Sections 21610 and 21611 is for the will or trust to include a clear and unambiguous language indicating that the omission of the spouse was intentional. Courts are likely to enforce this language if it is clearly drafted. And while you can’t prevent someone from going to court seeking to claim that they deserve the protections provided to omitted spouses, the existence of a clear statement of intent in the testamentary instruments often acts as a powerful deterrent.

After the spouse has died and their testamentary documents exclude the surviving spouse, the surviving family members are well advised to try to reach an agreement as to how the omitted spouse should be treated. As in many areas of the law, it is generally better for the surviving spouse to raise the issue of the omission as soon as possible. And other beneficiaries should not assume that they will get what is provided under the terms of the will or trust; the surviving spouse may have a good chance of showing that are entitled to receive community, quasi-community, or separate property even if they weren’t mentioned in the will or trust.

Surviving / Omitted Spouses and Children

California law also provides some protections to omitted children, but these protections are more limited and apply in more narrow circumstances than the protections afforded omitted spouses. Specifically, California Probate Code section 21622 provides that an omitted child may receive property or assets under the will or trust if it can be shown that, at the time they signed their will or trust, the decedent didn’t provide for the child because he or she believed that the child was dead or was unaware of the child’s birth. Thus, a child who was known to their parent generally will not be treated as an omitted child. Moreover, the amounts that an omitted child can recover can be modest. It is equal to what they would have received had the decedent died without having executed a will or trust before their death.

Are Prenups Considered?

Prenuptial agreements can play a significant role in applying the rules relating to omitted spouses. Specifically, a married couple can in a prenuptial agreement waive their rights to receive property under their spouse’s will or trust. Thus, a prenup can be used to show that the omitted spouse is not entitled to the protections of an omitted spouse; the omission was intentional and was consented to. This is the most straightforward but not the only way in which a prenuptial agreement can be relevant to the potential rights of an omitted spouse or child. 

When Omitted Spouses Should Contact an Attorney in California

The application of the omitted spouse doctrine is very fact-intensive and often revolves around whether the omission of the spouse was intentional, consented to, and what the direct and circumstantial evidence shows about the intent of the spouse who died and why they omitted their spouse from their will or trust. Likewise, whether an omitted child can show that the person executing the will knew about a child’s existence or presumed that they were no longer alive is fact-intensive. Thus, if you believe that you have rights as an omitted child or spouse, contact an experienced trusts and probate lawyer as soon as you can to determine your rights. It is generally easier to enforce your rights before the assets and property of the deceased have been distributed, but is also possible in certain circumstances to unwind the disposition of property to recognize the rights of the omitted spouse or child. Likewise, if you are a family member or otherwise are a beneficiary of a will or trust, contact a lawyer sooner rather than later if you believe that a surviving spouse or child may have been omitted from the will. Their rights might impact what you may receive.

For more than 25 years, the lawyers of KJM Law Partners have zealously advocated on behalf of omitted spouses and children as well as family members, beneficiaries, and others who are or could be impacted by a claim that someone is entitled to the protections afforded by California law to an omitted spouse or child.