Omitted Spouses and Children In California

Omitted (otherwise known as pretermitted) spouses and children in California are those who marry the decedent (spouse) or are born (children) after the execution of all the decedent’s testamentary instruments and are not provided for in the testamentary instruments.

California has enacted Family Protection statutes to provided omitted spouses and children with a share of the decedent’s estate.

What Does An Omitted Spouse Receive From Decedent’s Estate in California?

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 the decedent’s testamentary instruments, the omitted spouse receives the following property as their share of the estate:

  • The one-half of the community property that belongs to the decedent under section 100.
  • The one-half of the quasi-community property that belongs to the decedent under Section 101.
  • 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.

Cal Prob Code § 21610.

Circumstances Under Which Omitted Spouse Receives No Share Of The Estate

There are certain circumstances where the omitted spouse receives no share of the estate under California law.  If any of the following are established, the omitted spouse is not entitled to a share of the decedent’s estate:

  • Decedent’s failure to provide for the spouse was intentional AND that intention appears from the testamentary instruments.
  • 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 for the spouse in such instruments is shown by statements of the decedent OR from the amount of the transfer OR by other evidence.
  • The spouse made a valid agreement waiving the right to share in the decedent’s estate.
  • If the spouse was a care custodian who married the decedent during the time services were provided and less than six months after the marriage commenced, unless clear and convincing evidence proves that the marriage was not the product of fraud or undue influence.  See California Targets Caregivers Who Marry Dependent Adult for more on this provision.

What Does An Omitted Child Receive From Decedent’s Estate in California?

Pursuant to California Probate Code section 21620, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, the omitted child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

Circumstances Where Omitted Child Does Not Receive A Share Of The Estate

There are certain circumstances where an omitted child receives nothing from the estate:

  • Decedent’s failure to provide for the child was intentional AND that intention appears from the testamentary instruments.
  • Decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child.
  • Decedent provided for the child 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 show by statements of the decedent or from the amount of the transfer or by other evidence.

What Happens If The Decedent Mistakenly Believed The Omitted Child Was Dead?

California law has an interesting exception based upon a decedent’s mistaken belief that the omitted child was dead, or when the decedent was unaware that the omitted child existed.

If decedent thought the child was deceased or did not exist, the child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.

Does Omitted Or Pretermitted Mean The Same Thing As Disinherited?

No, omitted or pretermitted do not have the same meaning as the term disinherited.  A disinherited spouse or child is one that was specifically identified in decedent’s estate planning documents to receive nothing and to be excluded.  A child or spouse that is disinherited may have recourse through a will contest or trust contest.

To avoid having an omitted spouse or child, it is prudent to have a California probate lawyer update your testamentary documents after a marriage or birth.

San Diego County

Merwyn J. Miller

Complete Guide to California Probate

California Probate Basics
Payment of Creditors, Expenses And Beneficiaries
California Spousal and Family Rights

Complete Guide to California Probate

California Probate Basics