Omitted Spouses in California: Rights, Exceptions, and What You Need to Know
- Linda Varga
- Jul 15
- 2 min read
The Quick Answer: Omitted Spouses May Inherit—Unless an Exception Applies
Under California Probate Code §21610, if someone marries after creating a will or trust and the estate plan doesn’t mention the new spouse, the surviving spouse is generally considered an “omitted spouse.”
In most cases, the omitted spouse is entitled to a share of the decedent’s estate unless:
The omission was intentional (and explicitly stated),
The spouse was otherwise provided for outside the estate plan, or
The spouse signed a waiver of inheritance rights, such as in a prenuptial agreement.
At Moravec, Varga & Mooney, we help surviving spouses—and estate executors—navigate these claims and determine whether the omitted spouse is legally entitled to a portion of the estate.
What Is an Omitted Spouse?
An omitted spouse is a surviving husband or wife who married the decedent after the creation of the will or trust but was not included in the estate plan. California law presumes that this omission was accidental unless proven otherwise.
Probate Code §21610 grants the omitted spouse a share of the estate equal to what they would have received through intestate succession, had no will or trust existed.
This includes community property rights, quasi-community property, and a portion of the separate property of the decedent.
When the Presumption Does Not Apply
Three main exceptions under California law block an omitted spouse from inheriting:
1. Intentional Omission
If the estate planning documents expressly state that the spouse is to receive nothing—even if unnamed—the omitted spouse has no claim.
Example: “I intentionally make no provision for my spouse, whether now existing or in the future.”
Such language is rare but legally valid when properly drafted.
2. Outside Provision
If the surviving spouse was provided for by other means, such as a life insurance policy or joint tenancy account, and the decedent intended it to be in lieu of inheritance, the omitted spouse’s claim may be denied.
Courts often examine:
Declarations in the trust or will
Evidence of separate property agreements
Transfers made to the spouse before death
3. Valid Waiver or Prenuptial Agreement
If the spouse signed a waiver (such as in a prenup or postnup) that included a clear and voluntary relinquishment of inheritance rights, then they may be barred from inheriting.
Contesting or Defending an Omitted Spouse Claim
If You Are a Surviving Spouse:
Obtain a copy of the estate plan
Gather evidence of any outside provisions or waivers
Consider filing a petition for your statutory share under Probate Code §21610
If You Are a Trustee or Executor:
Review the timing of marriage vs. estate plan
Investigate whether exceptions under §21611 apply
Consider working with counsel to defend against invalid claims
Related post: Who Are the Parties In an Estate?
Protecting Your Rights After the Death of a Spouse
Whether you are a surviving spouse asserting your rights or a beneficiary concerned about a potential omitted spouse claim, it’s important to act quickly and strategically. California courts consider both the intent of the decedent and the evidence of any exceptions.
At Moravec, Varga & Mooney, we help clients determine the rightful distribution of estates and trusts under California probate law.
📞 Schedule a consultation today to protect your legal rights.