What are the consequences where a person executes a trust or will and subsequently marries but fails to revise the trust or will to include the spouse? Upon death, the California Probate Code gives an omitted spouse the right to claim a share in the decedent’s estate. This means that if you had an estate plan prior to your marriage, you should revisit that plan to either disinherit your new spouse or revise the plan to provide for your new spouse. Otherwise, your surviving spouse will have the right to make a claim for his or her share of your estate.
There are three exceptions to the above rule. First, the spouse will not have a claim to the decedent’s estate if it is clear on the face of the trust or will that the decedent intended to not provide for the surviving spouse. Second, the surviving spouse will have no claim against the decedent’s estate where (1) the decedent made lifetime gifts to the surviving spouse; and (2) there is clear evidence that the lifetime gifts were made in lieu of including the surviving spouse in the decedent’s trust estate. Third, the surviving spouse made a valid agreement waiving the right to a share in the decedent’s estate, such as a prenuptial or postnuptial agreement, then he or she will not take a share of the decedent’s estate.
Based on the above, it is crucial for newlywed couples or couples that are planning to get married to revisit any estate plans they may have to ensure that their assets are protected and distributed according to their wishes.
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