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The Case of the Omitted Spouse

It is important to update your California estate plan in the event of a remarriage. If one fails to do this, one of the results may be the application of California's omitted spouse statute and potentially costly probate litigation.

An "omitted spouse" in California is a spouse who married the decedent after the decedent prepared his or her estate planning documents and is not provided for in the decedent's estate. When this happens unintentionally, California law seeks to protect the omitted spouse.

Under California's Probate Code, the omitted spouse has the right to claim one-half of the decedent's community, quasi-community property as well as the portion of the decedent's separate property the omitted spouse would have received had the decedent died intestate. The omitted spouse would thus receive all of the couple's community property - the omitted spouse's half plus the decedent's half - as well as a large chunk of the separate property.

There are three important exceptions when the surviving spouse will not receive a statutory share. First, if the decedent’s failure to provide for the spouse was intentional and apparent from the decedent’s testamentary instruments. That would apply if the instrument showed that the decedent contemplated marrying the person he or she would later marry. Then even a nominal gift to such person would prevent the general rule (i.e., no statutory share for the surviving spouse). Also, if the instrument expressly excludes any future spouse from any inheritance, even if no one is specifically named, the general rule does not apply.

Second, if it can be shown that the decedent provided for the spouse by gifts outside of the testamentary instrument then such external provisions would prevent application of the general rule. For example, if there were substantial lifetime gifts or other assets that passed automatically on death of the surviving spouse (such as joint tenancy assets or designated death beneficiaryaccounts) then, depending on circumstances, these may evidence intention by the decedent to provide otherwise in lieu of a gift under the instrument.

Third, the general rule does not apply if the surviving spouse signed a valid agreement waiving the right to a statutory share.

Of course, this may not be what either spouse would have wanted. In many cases involving a second marriage, the primary goal of the testator will be to provide for his or her children from a previous marriage. The couple can avoid application of the omitted spouse statute if the new spouse expressly waives his or her rights under that statute. One way to do this is through a valid a prenuptial agreement.

Second marriages and blended families present particular challenges in estate planning. California residents in these circumstances can benefit from consulting an experienced estate planning lawyer, which could help individuals navigate the process and make informed decisions in his or her situation.

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