When entering a new marriage, updating your estate plan might not be the first thing on your mind. However, it is an essential step to avoid your loved one from becoming an “omitted spouse.” What should you know?
What is an omitted spouse?
An omitted spouse refers to a situation where a person omits their spouse from a per-existing estate plan. This typically happens if the person has an existing estate plan from prior to the marriage, then gets married, and does not update the estate plan documents.
If you leave your spouse out of your plan, will they receive nothing?
While people may worry that leaving their spouse out of their estate plan will accidentally disinherit them. However, California’s probate code provides protection for omitted spouses by granting them certain rights to inherit, even if a will or trust does not mention them. Typically, an omitted spouse will receive:
- Half of the community property: This includes assets acquired during the marriage.
- A share of the separate property: The portion is determined based on what the spouse would have received had there been no will.
Unfortunately, the share for an omitted spouse means that the spouse will not necessarily receive what their deceased spouse wanted to leave for them.
There are also exceptions. If the will or trust specifically excludes the spouse from inheriting, if the spouse agreed to receive nothing or if they received support in another way, or if there is other sufficient evidence that the person was intentionally not providing for the spouse, then teh spouse may not qualify for these protections.
The best way to avoid omitting your spouse is to update your plan
Updating your estate plan after marrying, regardless of whether you want to provide for your spouse, eliminates the presumption that the spouse was unintentionally omitted. But updating your estate plan is not simply a formality after a wedding. Taking the time to review and make changes to your plan ensures that your new spouse receives the support that you want them to receive.
A new marriage is a joyous occasion, but it also brings about changes that require careful planning and consideration. By taking proactive measures, you can safeguard your assets and provide peace of mind for you and your loved ones.
