Part III - The Omitted Spouse

The Estate of Will exemplifies one of the exceptions precluding a surviving spouse who was omitted from an existing testamentary instrument from receiving a share in his or her deceased spouse's estate


Ted Will (decedent), an 81 year old divorcè with five children, executed a will and trust prior to his marriage to Gertrude Fochs, an 80 year old widow with five adult children. Gertrude suffered from lung cancer and the couple contemplated that she would not survive Ted due to her illness. Shortly before Ted and Gertrude's wedding, they met with Ted's attorney to discuss a prenuptial agreement stating that each spouse waived the right to inherit from the other. The agreement contained schedules listing the assets of each party. Ted's attorney offered to obtain independent counsel at Ted's expense for Gertrude but she declined stating that she has read and understood the terms of the agreement. Ted and Gertrude signed the agreement and were married the following day.

Two years later, Ted died unexpectedly, leaving Gertrude the survivor. He never amended his will and trust nor had he executed another will and trust after his marriage to Gertrude.

After Ted's death, Gertrude had a change of heart regarding the waiver of her rights and petitioned the court for a share in Ted's estate. Gertrude contended that she was an omitted spouse under Probate Code section 21610. She further asserted that the prenuptial agreement was unenforceable because it did not comply with the specific requirements of Family Code section 1615 regarding representation by independent counsel, seven days' advance notice of the agreement, and a separate document explaining the rights being waived.

However, the probate court determined that the prenuptial agreement was independently enforceable pursuant to section 140 of the Probate Code. The court then concluded that Gertrude was not entitled to a statutory share of Ted's estate. Gertrude appealed.

Stay tuned for more on this topic on our subsequent blog.

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

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