When Omitted is Not Omitted

There could be any number of circumstances in which one spouse may want to leave the other one out of their will. Or it could happen where a will just had never been changed to reflect that there even was a new spouse. And whether a spouse gets left out is intentional or unintentional makes all the difference when it comes to the estate being probated.

If one spouse is not mentioned at all in the will, then that person becomes the 'pretermitted spouse' or 'omitted spouse.' When this happens a spouse is still entitled to benefit from the testator's estate under the California Probate Secs. 6560-6573. So, unless the testator explicitly disinherited the spouse within the language of the instrument, the spouse is entitled to half of the community, quasi-community property and a share of the deceased's separate property equal to the value as if the partner had died intestate.

So you see, it is very important to know that by just not mentioning a spouse in a will you cannot completely disinherit them. They will still benefit whether you wanted them to or not.

Please consult a professional estate litigation Attorney when drafting wills, trusts, and other legal instruments regarding your estate.

*This blog entry was not written by an Attorney and should not be constituted as professional legal advice.

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