How Can You Circumvent the Omitted Spouse Provision?

Under the California Probate Code, an omitted spouse is a surviving spouse that was unintentionally disinherited under a will or trust that was executed prior to marriage. The law provides for the omitted spouse by giving him or her a share in the deceased spouse's (decedent) estate. The decedent would be treated as if he or she died intestate or without a will.

Under the law, the omitted spouse could claim and receive the entire community property (all property acquired during marriage except by gift, bequest, devise or inheritance) as well as up to half of the decedent's separate property (all property acquired before marriage, after separation, or by gift, bequest, devise, or inheritance during marriage). For those who has children from a prior marriage and intends to leave their separate property to those children, you may want to ensure that such property would be off limits to your current spouse. Merely omitting such spouse from your will or trust may be insufficient to protect the assets meant for your children.

Section 21611 of the California Probate Code provides three ways to prevent an omitted or pretermitted spouse from receiving a share of the decedent spouse's estate:

  1. Intentional Omission of Spouse Appears in the Testamentary Instruments – The decedent's will and trust must directly state that the spouse has been intentionally omitted. This would require the execution of a codicil to an existing will and/or an amendment to an existing trust instrument.
  2. Provision for the Surviving Spouse Through Transfers Outside of the Estate - The decedent must have provided for the spouse outside of the testamentary instruments (e.g. through life insurance) with the intention that the transfers are in lieu of provisions in said instruments. This intent may be apparent by statements made by the decedent, amount of transfers, or by other evidence.
  3. Valid Waiver of Spouse's Right To Share in Decedent's Estate – The surviving spouse properly executed a waiver to his or her right to share in the decedent's estate. This waiver may be in the form of a premarital agreement or any other written instrument that complies with the requirements of sections 142 through 144 of the probate code.

If you have additional inquiries about your specific situation, contact the Law Offices of David A. Shapiro, P.C. at 310-853-1554.

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

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