Once you get married your spouse has rights. If you don’t put them in your will or trust, they become an “Omitted Spouse”.
The probate term “omitted spouse” refers to a person who marries an individual who already has an executed estate plan, which the individual then fails to change or amend after marriage. In such a scenario, the unmentioned spouse is “omitted” from the testamentary instruments.
The California Probate Code protects omitted spouses by allowing them to take the statutory share of the estate, get up to ½ of all Separate Property, and all the community property. The community property will include everything mixed together (and most people combine their assets), unless:
- The estate plan specifically disinherited the spouse, or
- The spouse received sufficient assets outside the estate, or
- The spouse executed a valid waiver (either by premarital agreement or other legally enforceable document or contract).
It is important when you remarry to realize that your new spouse will have legal rights to your belongings unless you create a legally binding document stating otherwise.
