July 18, 2009

Omitted Spouse or Child

It is common for a person to write a will or trust (called a testator for wills/settlor for trusts) before he or she marries, or to write a will or trust before he or she has another child when they already have one. The former is known as a “pretermitted spouse” or “omitted spouse” and the latter is known as a “pretermitted child” or “omitted child." The reason why this is important in estate planning is because that pretermitted spouse or child or both is entitled to a portion of the testator’s estate even if the testator has failed to mention the spouse or child in their will. Prob C §§21610-21612; Prob C §§21620-21623. Thus, the people named in the will or trust (the beneficiaries) might have to share their distribution with the spouse or child or both even if the testator did not wish for such.


For example, unless an exception applies, a pretermitted spouse is entitled to one-half of the community property, one-half of the quasi-community property and a share of the deceased married person's separate property equal in value to the share that the spouse would have received if the decedent had died intestate, but in no event more than one-half the value of the separate property in the estate. Prob C § 21610. However, per Prob C §21611, there are three circumstances in which the above does not apply:

1. The deceased married person's failure to provide for the omitted spouse was intentional and that intention is apparent from the relevant testamentary instrument (see explicitly disinherited);

2. The decedent made transfers to the surviving spouse outside the testamentary instrument intended to be in lieu of a provision in the decedent's will or trust to provide for the spouse, as shown (a) by the decedent's statements, (b) from the amount transferred, or (c) by other evidence (see large documented gifts); or

3. The surviving spouse signed a valid agreement waiving the right to share in the decedent's estate (very rare circumstance).


In the case of a pretermitted child, if a testator fails to provide by will or trust for a child born or adopted after execution of the will or trust, the surviving child is entitled to take from the estate that share of the decedent's estate that would be the child's share if the decedent had died intestate. Prob C § 21620. Please see this prior posting on intestacy for further explanation. However, as in the case of a pretermitted spouse, a pretermitted child is not entitled to his or her intestate should any of the following occur:

1. The testator intended not to provide for the child, and that intention "appears from the will" (Prob C §21621(a));

2. The testator had a child or children when the will was signed and devised "substantially all the estate" to the other parent of the omitted child (Prob C §21621(b)); or

3. The testator provided otherwise for the child, and the intention that the provisions were made instead of testamentary gifts is "shown by statements of the decedent or from the amount of the transfer or by other evidence" (Prob C §21621(c)).

The conclusion that should be drawn from this is that if you wrote a will or trust before you were married or had additional children after you drafted a will or trust, you should look over it to make sure you do not have an issue with a pretermitted spouse or a pretermitted child because otherwise the California Probate Code might alter your estate plan against your wishes.