How does California law protect the omitted spouse?


In an earlier post in this blog we talked about the importance of updating a 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.

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.

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.

Source: Leginfo.ca.gov, "§§ 21610-21611," accessed Oct. 10, 2015

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