Omitted Spouse in California: Your Inheritance Rights

California law protects surviving spouses who are not mentioned in their deceased spouse's will. If your spouse signed a will before your marriage and never updated it to include you, you may be entitled to inherit as an "omitted spouse" under Probate Code 21610-21612.

What Is an Omitted Spouse?

An omitted spouse (also called a pretermitted spouse) is a surviving spouse who:

Married the testator (person who made the will) after the will was signed
Is not provided for in the will
Was not intentionally excluded

The law presumes that when someone makes a will before marriage and does not update it afterward, they would have wanted to provide for their new spouse.

Omitted Spouse Rights

If you qualify as an omitted spouse, you receive what you would have inherited under California's intestate succession laws, as if your spouse died without a will.

Community Property

You already own 50% of community property automatically. Under intestate succession, you also receive your spouse's 50% of community property.

Result: You receive 100% of community property.

Separate Property

Your share of separate property depends on other survivors:

Other Survivors	Your Share
No children, parents, siblings	100%
One child	50%
Two or more children	33.33%
No children, but parents	50%
No children or parents, but siblings	50%

Requirements to Qualify

1. Marriage After the Will

You must have married the testator after the will was executed. If you were married before the will was signed but not mentioned, different rules apply.

2. Not Mentioned in the Will

The will does not name you or provide for you. A spouse who is named in the will, even if given nothing, is not an omitted spouse.

3. Not Intentionally Omitted

The testator did not intentionally leave you out. This is where exceptions apply.

Exceptions: When Omitted Spouse Rules Do NOT Apply

You do not qualify as an omitted spouse if:

Waiver in Prenuptial or Postnuptial Agreement

You signed a valid agreement waiving your right to inherit. Prenuptial agreements commonly include inheritance waivers.

Intentional Omission Stated in Will

The will specifically states that the omission of future spouses is intentional. Language like "I intentionally make no provision for any spouse I may marry in the future" defeats omitted spouse rights.

Provision Made Outside the Will

The testator provided for you by means outside the will, and it is shown that this was intended to be in lieu of a will provision. Examples:

Life insurance naming you as beneficiary
Joint accounts with survivorship
Trust benefiting you
Real property transferred to you

How to Claim Omitted Spouse Rights

Step 1: Determine If You Qualify

Review the will's date and your marriage date. Check for any waiver agreements or intentional omission language.

Step 2: File a Petition

File a petition with the probate court claiming your omitted spouse share. Include:

Evidence of marriage date
Copy of the will showing execution date
Statement that you meet the requirements
Calculation of your claimed share

Step 3: Give Notice

Notify all beneficiaries under the will and heirs at law.

Step 4: Court Hearing

The court holds a hearing to determine if you qualify as an omitted spouse. Present evidence supporting your claim.

Step 5: Court Order

If you qualify, the court orders that you receive your intestate share.

How the Estate Is Redistributed

When an omitted spouse claims their share, the estate is recalculated. Your share comes from what would have passed under the will.

Example

Original will distribution:

Child A: 50% ($250,000)
Child B: 50% ($250,000)
Total: $500,000 separate property

After omitted spouse claim (one child scenario):

Omitted spouse: 50% ($250,000)
Child A: 25% ($125,000)
Child B: 25% ($125,000)

The children's shares are reduced proportionally to fund the spouse's share.

Timing

When to File

File your omitted spouse petition during the probate proceedings. There is no specific deadline, but file as early as possible to avoid complications with distributions.

Statute of Limitations

While there is no absolute deadline, failing to raise the claim during probate can make it much harder to pursue later. Distributions made to beneficiaries may be difficult to recover.

Common Situations

Recent Marriage

A common scenario: an elderly person with an existing will marries late in life. If they die before updating the will, the new spouse has omitted spouse rights.

Second Marriage

After divorce, a person remarries but never updates the will that named the first spouse or children. The second spouse may be entitled to an omitted spouse share.

Long Marriage Without Will Update

Sometimes couples marry young and the spouse makes a will before marriage. Decades later, if the will was never updated, the surviving spouse is still technically omitted.

Omitted Spouse vs. Surviving Spouse Rights

Right	Applies When
Community property 50%	Always (you own it)
Omitted spouse share	Will predates marriage and doesn't include you
Intestate succession	No will exists
Rights under will	Will provides for you

Omitted spouse rights are a safety net when estate planning lapses occurred.

Protecting Against Omitted Spouse Claims

For Estate Planners

If you want to exclude a future spouse as part of your estate planning:

Include explicit language in the will stating the omission is intentional
Consider prenuptial or postnuptial agreements
Update the will after marriage if desired

For Personal Representatives

When administering an estate:

Check if the surviving spouse is mentioned in the will
Compare the will date to the marriage date
Address omitted spouse issues before making distributions

Frequently Asked Questions

What is an omitted spouse in California?

An omitted spouse is a surviving spouse who married the testator after the will was signed and is not provided for in that will. California law gives omitted spouses a share of the estate as if the deceased had died without a will.

How much does an omitted spouse receive?

An omitted spouse receives their intestate succession share: all community property plus a share of separate property that depends on other survivors (ranging from 33% to 100%).

Can I be an omitted spouse if I signed a prenup?

If the prenuptial agreement waives inheritance rights, you likely do not qualify as an omitted spouse. The waiver is an exception to omitted spouse protections.

What if the will says my spouse intentionally excluded me?

If the will explicitly states that future spouses are intentionally excluded, omitted spouse protections do not apply. The exclusion must be clearly stated.

Is there a deadline to claim omitted spouse rights?

There is no specific deadline, but you should claim your rights during the probate proceeding. Waiting until after distributions can create significant complications.

Does an omitted spouse get everything?

No. An omitted spouse receives their intestate succession share, which may be a portion of the estate depending on other survivors (children, parents, siblings).

Related Guides

Sources:

California Probate Code Sections 21610-21612 (Omitted Spouse)
California Probate Code Section 6401 (Intestate Share of Surviving Spouse)
California Courts Self-Help Center

Last Updated: January 2026. This guide provides general information about omitted spouse rights in California. Consult with a California probate attorney for advice specific to your situation.