law protects a surviving spouse when the deceased spouse’s last will or trust,
executed prior to marriage, fails to provide for the surviving spouse.  California’s policy is to protect a surviving
spouse against accidental disinheritance under a testamentary instrument
executed prior to marriage.  Generally
speaking a surviving spouse who is omitted in the spouse’s will or trust from
before the marriage is entitled to a statutory share of the deceased spouse’s
estate.   Let us examine the general
rule, when and how it applies, and exceptions when it does not apply.

law provides that an omitted surviving spouse shall receive a share in the
deceased spouse’s estate.  The share is
computed as if the decedent had died intestate (i.e., without any will or
trust).  The surviving spouse receives
the following:  (1) The deceased spouse’s
one-half share of any community property; (2) the deceased spouse’s one-half
interest in any quasi-community property; and (3) one-third to one-half of the
deceased spouse’s separate property.  The
surviving spouse may not receive more than one-half of the deceased spouse’s
separate property.

The general rule may
even apply when the will or trust, as relevant, names the person who would
later marry the decedent as a beneficiary, unless the same document also
expresses contemplation of later marrying the same beneficiary (this would show
the decedent’s intentions towards his surviving spouse).  A general disinheritance clause does not
overcome the general rule allowing the surviving spouse a statutory share.

The statutory share is
computed based on the total value of the decedent’s probate estate and living
trust.    Other non probate assets,
outside the trust, are excluded.   
said, however, gifts of such other assets to the surviving spouse will be
considered as to whether the surviving spouse was provided for outside of the
testamentary instrument.

The probate court will
take assets to satisfy the share in a way that leaves as much of the decedent’s
testamentary wishes intact as possible.  Assets
that are not specifically gifted are used first.  The rest is taken proportionately from all the
beneficiaries.  Any specific gifts may be
exempted if using them would defeat the decedent’s wishes.

are three important exceptions when the surviving spouse will not receive a
statutory share.   First, if the
decedent’s failure to provide for the spouse was intentional and apparent from
the decedent’s testamentary instruments.
That would apply if the instrument showed that the decedent contemplated
marrying the person he or she would later marry.  Then even a nominal gift to such person would
prevent the general rule (i.e., no statutory share for the surviving
spouse).  Also, if the instrument
expressly excludes any future spouse from any inheritance, even if no one is
specifically named, the general rule does not apply.

if it can be shown that the decedent provided for the spouse by gifts outside
of the testamentary instrument then such external provisions would prevent
application of the general rule. For example, if there were substantial
lifetime gifts or other assets that passed automatically on death of the
surviving spouse (such as joint tenancy assets or designated death beneficiary
accounts) then, depending on circumstances, these may evidence intention by the
decedent to provide otherwise in lieu of a gift under the instrument.

the general rule does not apply if the surviving spouse signed a valid
agreement waiving the right to a statutory share.

who is contemplating marriage or who is a surviving spouse of a decedent whose
testamentary instrument was executed prior to marriage should seek qualified
legal counsel regarding the application of these complex rules to their
situation.  This shows the importance of
keeping one’s estate plan up to date on the occurrence of major life events,
such as marriage.




“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”