Love and marriage may go together (like a horse and carriage…), but marriage and estate planning may be another story.

If a person creates a Will or a Trust in California and then subsequently marries, that person’s new spouse automatically becomes a beneficiary of the Will and Trust by operation of law.  Many times people mistakenly believe that if their spouse is not mentioned in their existing estate plan, s/he will not receive anything after death.  And this may be exactly what the parties intended.  Especially with second marriages where each spouse may already have their own assets and they would rather leave those assets to their children rather than to their spouse at death.

But California law says otherwise.  The law is referred to as “omitted spouse” and it assumes that if a Trust or Will is made before marriage, and never changed to reflect the new marriage, then the new spouse gets his or her share of the estate.

This result can easily be avoided, however, by simply updating your estate plan to reflect the new marriage.  If the Trust and Will documents reflect an intent to disinherit the new spouse, then that overrides the law of omitted spouse. 

If avoiding the omitted spouse law is so easy, then why are attorneys called upon to litigate so many omitted spouse cases?  Primarily it’s because the law of omitted spouse is not widely known or even understood.  In fact, it’s usually a huge surprise to the children after a parent dies.  The children believe that since the spouse is not mentioned in the estate plan, he or she should receive nothing from the estate.  The children are outright stunned when they find out how omitted spouse automatically opens the door for the new spouse into the estate as a beneficiary.

The lesson is to remember that marriage raises many issues and rules that can have a significant effect on a person’s property rights (especially in California because we are a community property State).  Taking the time to review and update an estate plan either shortly before, or immediately after, marriage can help avoid future litigation.

  • Iris Lu

    Can a surviving who is qualified as an “omitted spouse” under California Probate Code 21610 take her statutory omitted spouse share plus the specific gifts given to her under the Will in her status as a friend? I another words, the Will bequeathed several items to her and referred to her only as a friend. Decedent later married this friend but did not change the Will after the marriage. So there exist a premarriage Will. This friend and the deceased’s surviving spouse is one of the same. Can she take the specific gifts which is very important to her in addition to the omitted spouse statutory share? She is qualified as an “omitted spouse” as none of the exclusions therein applies to her.

  • Great question. An omitted spouse has to choose, either take under the Will as written or take the omitted spouse share, but not both. Of course, if the specific gift is something unique, like a personal item, then that can usually be negotiated to be included in omitted spouse’s share.