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When a will or trust fails to name a spouse or child

Posted by Michael Guzman | May 08, 2017 | 0 Comments

If you execute a will or a trust prior to marriage or having a child, you may forget to update your estate plan to include your new spouse or child. The law in California presumes this was a mistake and entitles the omitted (or “pretermitted”) spouse or child to his or her share. This share is generally the same as it would be if you had died with no will or trust. This rule also applies to children adopted after the execution of the estate planning documents.

This is one of many reasons to regularly update your estate plan, especially after major events like marriage or the birth of a child.

What is the amount to which they are entitled?

The share of the decedent's estate is determined by what the spouse or child would have received if the decedent had died intestate (without a will or trust).

An omitted spouse is entitled to the following:

  • The decedent's one half of the community property
  • The decedent's one half of the quasi-community property
  • A share of the decedent's separate property (one half unless the decedent had 2 or more children; then the spouse gets 1/3)

An omitted child is entitled to the following:

  • If there is one child, that child gets 1/2 of the decedent's separate property
  • If there is more than one child, those children split 2/3 of the decedent's separate property

If this is not your intention, it can greatly disrupt your distribution plan if someone tries to claim the share of an omitted spouse or child after you're gone.

Are there exceptions?

The spouse and/or child is not entitled to his or her omitted share in the following situations:

  • The decedent's failure to include the spouse or child was intentional and that intent is clear from the documents executed
  • The decedent provided for the spouse or child outside of the will or trust with the intent that this provision be in lieu of receiving under the estate plan
  • The surviving spouse waived his or her right in a valid agreement to such effect
  • The decedent left most of the estate to the other parent of the omitted child (it is assumed that parent will provide for the child)

It is highly recommended that your estate plan receive periodic reviews and updates. It is best to spell out your intentions as clearly as possible. If you want someone to receive something, it should be made clear. Likewise, if you do not want a spouse or child to receive something, you should make that clear as well.

Helix Law Firm can help with estate planning and estate administration

If you are an omitted spouse or child, we can help you get the share to which you are entitled. If you have failed to name a child or spouse in your estate plan, we can draft an amendment or restatement to help avoid a potential dispute.

If you're interested in learning more about how Helix can help, please call us at (619) 567-4447 to schedule a free consultation.

About the Author

Michael Guzman

Michael Guzman is a Paralegal at Helix Law Firm. He helps to maintain Helix Law Firm's extraordinary quality of customer service, and assists in the intake of new clients and in communicating with existing clients and vendors. Michael attended the University of San Diego and is a proud Torero.

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