What is an "omitted spouse" and how may it affect your estate plan?

California has a strong public policy towards protecting spouses who are left out of his or her partner's Will or Trust. The so-called "omitted spouse" generally refers to someone who marries his or her spouse after his or her spouse creates a Will or Trust.

A quick example: Susan creates a Will for the benefit of her mother on January 1, 2018. On December 1, 2018, Susan marries Bill. On January 1, 2019, Susan dies. Bill is an "omitted spouse".

The "Statutory Share"

A surviving spouse who marries the deceased spouse after the deceased spouse executes his or her "testamentary instrument" (i.e., a Will or Trust) is entitled to a "statutory share" of the deceased spouse's probate or trust estate.

But what is the "statutory share" and how do you calculate it? California Probate Code Section 21610 states as follows:

Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate:

(a) The one-half of the community property that belongs to the decedent under Section 100.

(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.

(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.


A rule wouldn't be a rule without exceptions. California Probate Code Section 21611, provides 3 such exceptions to the statutory share rule. It states that:

The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:

(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.

(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate. 

If you are anticipating marrying someone and have already created your Will or Trust, it is important to consult an estate planning lawyer to ensure that your wishes are properly carried out. If you would like dispose of your property in the same manner as you had specified prior to your marriage, you may need to include a provision to that effect in your Will or Trust.