In California probate and trust litigation, few issues stir up more confusion and litigation than the rights of a surviving spouse who is left out of a will or trust. These individuals are often referred to as “omitted spouses,” and the law generally provides them with a share of the estate. But not always.
This post explains when an omitted spouse doesn’t get a share—and why.
What is an Omitted Spouse?
Under California Probate Code §§ 21610–21612, an “omitted spouse” is a surviving spouse who married the decedent after the decedent executed their estate plan (usually a will or a revocable trust) and was not provided for in that estate plan.
Unless a valid exception applies, the omitted spouse is entitled to a statutory share of the estate, which includes:
- One-half of the decedent’s community property interest;
- One-half of the decedent’s quasi-community property interest;
- A share of the decedent’s separate property (not to exceed one-half), as though the decedent had died intestate.
The Presumption and the Problem
The law assumes that when someone marries after creating a trust or will and does not amend the document to include their new spouse, they simply forgot. And so the statute steps in to give the spouse a share.
But that presumption can be overcome by evidence showing the decedent intentionally excluded the spouse.
The Exception: When the Spouse Was Already Provided For
Probate Code § 21611(b) provides one of the key exceptions: a surviving spouse is not entitled to an omitted spouse share if the decedent provided for the spouse by other means—outside the will or trust—and intended those transfers to substitute for a testamentary gift.
Evidence of this intent can come in three forms:
- Statements made by the decedent;
- The amount of the transfer; or
- Other evidence showing that the lifetime transfers were in place of a gift in the estate plan.
Real-World Example
For example, two adult children seek to enforce their late parents’ trust, which was created years before the surviving trust creator (“decedent”) remarried. The decedent never updated the trust to include the new spouse.
The spouse now claims she is entitled to an omitted spouse share. But decedent’s adult children argue she is not entitled to anything from the trust because she had been substantially provided for during the decedent’s lifetime.
Specifically, the decedent purchased a home for the spouse in another state using separate property funds—nearly $2,000,000. The spouse lived in that property for the duration of the marriage and never moved into the decedent’s California residence.
In addition to the real estate, the decedent allegedly made other significant transfers to the spouse outside of the trust in the form of cash gifts.
Based on this evidence, the children argue that Probate Code § 21611(b) exception to omitted spouse applies: the decedent made substantial lifetime transfers in lieu of providing for the spouse in the estate plan.
The Court’s Role
Under Probate Code section 17200, the probate court has authority to resolve questions about trust administration and determine to whom trust property should be distributed. In this case, the court will be asked to rule that the omitted spouse exception applies and to order the trustee to distribute the remaining trust assets according to the terms of the trust—solely to the adult children.
Takeaway: Lifetime Gifts Can Defeat Omitted Spouse Claims
California law gives omitted spouses important protections—but those protections are not absolute. If a decedent clearly provided for a spouse outside the estate plan, and if there is evidence showing that those gifts were intended to take the place of a bequest, then the omitted spouse may be left with no claim to the estate.
For families involved in estate and trust disputes, this statutory exception can make all the difference.
If you’re unsure whether you need legal help, consider scheduling a free consultation with an experienced probate lawyer. A good lawyer can quickly assess your situation and guide you on the best course of action.
