Help! I was left out of my husband’s will!

Q: I was recently married and my husband died suddenly. There is a Will but I am not in it because it was written before we were married. What is going to happen to his assets? – Ima Survivor

A: Dear Ima,

I’m sorry to hear about your loss. Know that you are not alone. Even though we know how important it is to keep our estate plan up to date – it does not always happen that way. 

The state of California has a strong interest in making sure that a surviving spouse or registered domestic partner (RDP) is not accidentally left out of an estate plan that was created before the marriage. The general rule is that as an “omitted spouse” you inherit the share you would have received if your spouse did not have a Will, this means that you will get at least a portion of your spouse’s estate. (Usually California’s rules apply to spouses and RDP’s but I will just use “spouse” going forward for brevity)

This means you inherit assets held in both your names as community property and joint tenants along with all or some of your spouse’s separate property. Your share of separate property can be reduced if your spouse had children.

You should know that 1) it’s time to hire a lawyer if you don’t already have one; 2) there are exceptions to the rule above; and 3) find a support system and take a deep breath, this is going to take some time and money. Most people experience stress magnified by uncertainty and the grieving process so getting a support system for yourself is important. If you are having trouble paying bills because of this situation, tell your lawyer because the court may be to give you enough money from the estate to pay bills.

Some exceptions: a person is not an omitted spouse if the omission was purposeful, not an accident. In situations where a person decides not to provide for their spouse in a will or trust, a carefully drafted document can effectively disinherit as spouse. This is actually not too rare, especially when there are children from a prior marriage, a non-citizen spouse or if the surviving spouse has sufficient assets of their own.

A person can also waive the right to inherit as an omitted spouse under a prenuptial or post-nuptial agreement.

Finally, another reason why a surviving spouse might not receive any or all of an estate is when that person has committed physical or emotional abuse, neglect, or financial abuse.

Good luck, Ima. I hope this helps. 

Remember, this information is provided for general education and entertainment purposes. I have not considered your individual circumstances. You should consult with your own attorney regarding your unique circumstances.