Omitted Spouse

The marital status of a person occasionally changes over time. For example, a person could be married one year, divorced the next year and then re-marry the following year. With the change in marital status, there are estate planning implications that may arise. One such issue is the beneficial interest, if any, of a subsequent spouse in the other spouse's estate. The relevant law provides that "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 of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate" per CA law. Probate Code §21610. However, a surviving spouse does not automatically qualify as an omitted spouse.    

A recent unpublished appellate opinion centered on a surviving spouse's claim to be an omitted spouse.

Oswaldo Herrador, a widower, married Rose Herrador in 2015. Oswaldo had executed a marital trust with his prior spouse, Gloria Herrador, in 2010. The trust was funded with a fourplex in Daly City, CA and a residence in San Bruno, CA. Gloria passed away in 2010 and Oswaldo passed away in 2022. In 2023, Rose filed a petition requesting her share of Oswaldo’s estate as an omitted spouse. The petition alleged that Oswaldo “neglected to create and execute either a Trust or a Will to provide for Rose. Oswaldo also failed to provide for Rose otherwise, commensurate with her spousal share," by naming her as beneficiary "on any account or insurance policy, or granting her an interest in title to either of his two real properties located in San Mateo County."  

Oswaldo’s children filed an objection which “disputed that Rose was an omitted spouse since Oswaldo provided for her in a separate testamentary instrument, his "Last Will and Testament," which governed his assets in El Salvador and was subject to probate in El Salvador (El Salvador Will). It also alleged, inter alia, that Rose was not an omitted spouse because Oswaldo designated her as the sole beneficiary of his Wells Fargo Bank account."

“On April 15, 2024, the trial court held a hearing on the motion for summary adjudication. Afterward, the trial court granted the motion, ruling, Petitioner is not an omitted spouse having been named as a beneficiary under decedent Oswaldo Herrador's testamentary instrument, namely his last will and testament governing his assets in El Salvador, executed after his marriage to Petitioner."

Rose appealed the trial court’s decision and this decision was affirmed on appeal.

Herrador v. Herrador, San Mateo County Superior Court case no. 23-PR0-00365 

Writing a Will

Writing a will is not an overly cumbersome process. The following are some provisions that all wills should contain. Of note, the term for a person who writes a will is "testator." A person who dies with a will dies "testate" whereas a person who dies without a will dies "intestate." 

Your full name and any nicknames you go by 

Clearly it would be difficult to administer a will if the testator was anonymous. Moreover, it is important to include any nicknames you might commonly go by. For example, past clients have routinely gone by their nicknames. Even their bank accounts or driver's license had their nicknames on the account (don't ask how they did this).

The point is to be able to ascertain who in fact wrote the will. 

Place of residence 

The common practice is to list the county of residence, rather than the city of residence, and the state of residence. There is no legal requirement to do so but it is good practice. If you do not know what county you reside in, well, just Google the city you live in and Wikipedia can tell you.

California law says that a will needs to be probate in the county of residence of the decedent. Hence including the county of residence would prove helpful for the executor. Prob C § 705. 

Name of spouse and/or children 

California is a community property state. Each spouse has a 50% community property interest in the entire marital estate. By omitting a spouse in their will, the testator runs the risk that the omitted spouse can claim an intestate share of the testator's estate despite their omission. Prob C §§100-101.  There are exceptions to this rule though. Prob C §21611.

Similarly, if a testator fails to mention his or her children, such omitted children can claim a share of the testator's estate, just like a spouse, despite their omission. Prob C § 21620. Although, again, there are exceptions to this general rule. Prob C § 21621. 

A No-Will Contract 

Yes, a person can write a contract which specifies how they will write their will. Prob C § 21700. I have never personally seen a will contract but have read about them. Regardless, it is good practice to include a no-will contract clause to erase any doubt. 

List of bequests

People read wills because they want to see what they will inherit. Obviously then, it is important to clearly delineate what item goes to which person. For example, a testator can write "my ATT stock to my cousin Bob" suffices.

It is not necessary to be overly verbose or complicated when making bequests. Just pick an item and list a person. 

Name an Executor 

The executor is a person nominated in a will to be appointed by the court to administer the estate at the testator's death.The executor can be virtually anyone, a relative, a family friend, a neighbor or a corporation. 

Just don't pick the crazy neighbor who refuses to mow his lawn, the relative who has filed bankruptcy multiple times or the friend who likes to buy products he sees while watching infomercials at night. 

Testator's signature 

The testator has a few options as to who can sign the will. (1) The testator can sign the will,  (2) a person  in the testator's presence by the testator's direction, or (3)a court-appointed conservator of the testator can sign as well. Prob C § 6110.

The norm is to have the testator sign. 

Attestation Clauses 

California law requires that 2 witnesses sign a formal will. Prob C § 6110. However, a holographic will does not require any witnesses to sign. Prob C § 6111. Still, holographic wills are ripe for fraud and undue influence. Hence, the writing of a holographic will is often discouraged.

Disinheritance in California

Many people believe that they are entitled to an inheritance from their parents or next of kin. This is simply not true. A California resident is free to disinherit their children, parents, nieces, nephews, etc. The only individual who they cannot disinherit is, if applicable, their spouse. The reason being is that each spouse only owns ½ of each community property asset and therefore may not will more than they own. For instance, if husband and wife purchase a home together after marriage and pay off the entire mortgage with their joint earnings, but the husband attempts to will the entire house to a third-party, the wife may void this transaction. Harris v Harris (1962) 57 C2d 367.

Some jurisdictions outside the United States have what is called "forced heirship" where a relative can request a set aside of the decedent's estate. However, these forced heirship laws do not exist in California. 

Still, if a person wishes to leave nothing to their children or to the maximum extent their spouse, they should do so in a precise fashion because there are laws that govern the omission of a child and spouse. Otherwise, a relative may inherit through intestate succession if no will, trust or beneficiary designation is made. 

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.

Spouse

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).

Child

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.