California 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.

California 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 nonprobate assets, outside the trust, are excluded. That 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.

There 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.

Second, 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.

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

Anyone 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.

Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .