California has a strong public policy towards protecting spouses who are left out of his or her partner's Will or Trust. The so-called "omitted spouse" generally refers to someone who marries his or her spouse after his or her spouse creates a Will or Trust.

A quick example: Susan creates a Will for the benefit of her mother on January 1, 2018. On December 1, 2018, Susan marries Bill. On January 1, 2019, Susan dies. Bill is an "omitted spouse".

The "Statutory Share"

A surviving spouse who marries the deceased spouse after the deceased spouse executes his or her "testamentary instrument" (i.e., a Will or Trust) is entitled to a "statutory share" of the deceased spouse's probate or trust estate.

But what is the "statutory share" and how do you calculate it? California Probate Code Section 21610 states as follows:

Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate:

(a) The one-half of the community property that belongs to the decedent under Section 100.

(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.

(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

Exceptions

A rule wouldn't be a rule without exceptions. California Probate Code Section 21611, provides 3 such exceptions to the statutory share rule. It states that:

The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:

(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.

(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate. 

If you are anticipating marrying someone and have already created your Will or Trust, it is important to consult an estate planning lawyer to ensure that your wishes are properly carried out. If you would like dispose of your property in the same manner as you had specified prior to your marriage, you may need to include a provision to that effect in your Will or Trust.

If you have a child who is born or adopted after you create your Will or Trust and you have not provided for them in your Will or Trust, then the child is considered an "omitted child".

An example: You create a Will on January 1, 2018 that states that all of your assets will be left to your parents. On December 1, 2025 your partner gives birth to your son, James. Unless you update your Will accordingly, James is considered an omitted child.

Statutory Share

An omitted child is entitled to a "statutory share" of your estate. California Probate Code Section 21620 states:

Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, the omitted child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

The "statutory share" is what your child would've received if you died "intestate", i.e., without any estate planning documents. This amount will depend on whether you have a spouse and how many children you have at the time of your death.

Exceptions

There are exceptions to the "omitted child" rule, and they are specified in California Probate Code Section 21621:

A child shall not receive a share of the estate under Section 21620 if any of the following is established:

(a) The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child.

(c) The decedent provided for the child by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements of the decedent or from the amount of the transfer or by other evidence. 

Slight Wrinkle

California Probate Code Section 21622 also provides a couple of exceptions to the general rule:

If, at the time of the execution of all of decedent’s testamentary instruments effective at the time of decedent’s death, the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth of the child, the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.

Thus, if you were under the mistaken belief that your child was dead (but was not actually dead) or if you weren't aware of a child you had, he or she would be entitled to a statutory share as well.

It's a good idea to include a provision in your Will or Trust that describes the members of your family to avoid future problems. Additionally, if children are born after you execute your Will or Trust, it's good practice to review your estate planning documents and have them updated.