Whether You Should Disinherit Your New Spouse and
How California Law Protects Your Omitted Surviving Spouse
by Magdalena A. LaBranch-Gonzales
Litherland, Kennedy & Associates, APC, Attorneys at Law
What happens if you marry your spouse after you created your estate plan but they are not mentioned in your plan when you die? California considers that person an “omitted spouse.”[i]
An “omitted spouse” is a spouse who married the decedent after the estate plan was already created but is not provided for in their plan. And, in that case, the surviving omitted spouse is entitled to a share of the decedent’s estate. Even if that was not decedent’s intent.
Let’s say, for example, Sally creates her estate plan leaving her entire estate equally to her three children. A couple of years goes by and she marries Harry. Sally says “Sure, I’ve known Harry for a couple of years and I love him, but I’ve known my children their whole lives. Of course, I want my children to inherit my estate. Maybe in the future I might change my mind but for now my estate plan is fine.” And then, Sally dies.
California law steps in to protect Harry. In fact, California laws were specifically created with the intent to guard against the omission of a surviving spouse by reason of oversight, accident, mistake or an unexpected change of conditions[ii]. California law assumes that you would have wanted to take care of your surviving spouse! In other words, California, “heirs” on the side of caution. (pun intended)
So, what happens now? If your spouse is considered an omitted spouse, California law declares the omitted spouse is entitled to receive one-half of your community property, one-half of your quasi-community property and up to one-half of their intestate share of your separate property.[iii]
Going back to our example, Harry goes to Court and the Court declares Harry an “omitted spouse.” Sally’s three children could be left with splitting less than half Sally’s estate. This was clearly not Sally’s intent.
I love my new spouse, but I love my kids more. How can I ensure that my new spouse is not an omitted spouse?
- Modify your estate plan to specifically disinherit your new spouse; or
- Modify your estate plan to leave your new spouse a share or a specific gift; or
- Create a pre-nuptial or post-nuptial agreement where the new spouse waives their right to inherit as your surviving spouse.
To discuss whether you should disinherit your spouse to preserve your estate for your beneficiaries or if you just want to review your estate plan to ensure it reflects your current desires and goals, contact our office at (408) 356-9200 or info@attorneyoffice.com to schedule a free in-office consultation.
[i] California Probate Code Sections 21610, 21611 and 21612 (the “Omitted Spouse Statutes”)
[ii] Estate of Katleman (1993) 13 Cal.App.3, 151, 65.
