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Wills • Intestate Succession
WILLS#048
Legal Definition
A spouse may dispose of their half of the community property by will to whomever they wish. A spouse omitted from a premarital will, however, receives their intestate share unless: (1) the omission was intentional as shown in the will; (2) the spouse is provided for in transfers outside the will; or (3) the spouse made a valid agreement waiving their interest in the decedent's estate.
Plain English Explanation
As you've learned in other cards, courts are very interested in trying to divvy up a dead person's estate based on however the dead person would have genuinely wanted it to be done. In an ideal world, wills would always reflect a dead person's intent. In the real world, however, this isn't always the case.
For example, it is not uncommon for a person to create a will before they get married, then forget to update their will, and then die without leaving anything to their dearly beloved spouse. It would be pretty messed up for the court to look at the spouse and say, "Sorry, you get nothing because your dead partner forgot to add you to their will." For this reason, a forgotten spouse will generally get their intestate share of the dead partner's estate unless one of the following is true:
(1) The dead partner intended to omit the spouse, and said so in the will. For example, if the will says something like, "I do not intend to ever share my personal property with a spouse and, if I am ever married, they should get none of my things."
(2) The dead partner already gave the omitted spouse other stuff. For example, if it can be shown that the dead person already generously provided for their spouse, then the court may feel it is not necessary to give them even more.
Or (3) if the omitted spouse signed an agreement that waived their rights in getting anything from the dead person's estate. This would be easy to spot on an exam since you would need to identify some sort of contract where the spouse receives something in exchange for promising not to claim against the dead person's estate.
For example, it is not uncommon for a person to create a will before they get married, then forget to update their will, and then die without leaving anything to their dearly beloved spouse. It would be pretty messed up for the court to look at the spouse and say, "Sorry, you get nothing because your dead partner forgot to add you to their will." For this reason, a forgotten spouse will generally get their intestate share of the dead partner's estate unless one of the following is true:
(1) The dead partner intended to omit the spouse, and said so in the will. For example, if the will says something like, "I do not intend to ever share my personal property with a spouse and, if I am ever married, they should get none of my things."
(2) The dead partner already gave the omitted spouse other stuff. For example, if it can be shown that the dead person already generously provided for their spouse, then the court may feel it is not necessary to give them even more.
Or (3) if the omitted spouse signed an agreement that waived their rights in getting anything from the dead person's estate. This would be easy to spot on an exam since you would need to identify some sort of contract where the spouse receives something in exchange for promising not to claim against the dead person's estate.
Hypothetical
Hypo 1: Bob writes a will before marrying Sam, leaving everything to his brother. After Bob dies, Sam discovers he's not in the will. Result: Sam is entitled to his share of Bob's property, as he was not included in the premarital will, and there's no evidence that Bob intentionally left him out, provided for him outside the will, or that Sam waived his rights.
Hypo 2: Before marrying Sam, Bob creates a will leaving his assets to charity. After their wedding, Bob gives Sam a valuable painting as a wedding gift. When Bob passes away, Sam finds he's not in the will. Result: Sam might not be entitled to an intestate share since he was provided for by the painting, which could be considered a transfer outside the will.
Hypo 3: Bob and Sam sign a prenuptial agreement where Sam waives any rights to Bob's estate. Bob's premarital will doesn't include Sam. After Bob's death, Sam tries to claim a share of the estate. Result: Sam cannot claim a share due to the valid prenuptial agreement waiving his rights to Bob's estate.
Hypo 4: Bob writes a will after marrying Sam, specifically stating that Sam should receive nothing. When Bob dies, Sam claims he should get a share. Result: Sam is not entitled to a share because Bob's will intentionally omits him, fulfilling the condition that the omission was intentional.
Hypo 2: Before marrying Sam, Bob creates a will leaving his assets to charity. After their wedding, Bob gives Sam a valuable painting as a wedding gift. When Bob passes away, Sam finds he's not in the will. Result: Sam might not be entitled to an intestate share since he was provided for by the painting, which could be considered a transfer outside the will.
Hypo 3: Bob and Sam sign a prenuptial agreement where Sam waives any rights to Bob's estate. Bob's premarital will doesn't include Sam. After Bob's death, Sam tries to claim a share of the estate. Result: Sam cannot claim a share due to the valid prenuptial agreement waiving his rights to Bob's estate.
Hypo 4: Bob writes a will after marrying Sam, specifically stating that Sam should receive nothing. When Bob dies, Sam claims he should get a share. Result: Sam is not entitled to a share because Bob's will intentionally omits him, fulfilling the condition that the omission was intentional.
Visual Aids
Related Concepts
How is property distributed where a decedent has no surviving spouse?
In California, what is the result of intestate succession for a surviving spouse?
What is an advancement?
What is intestate succession?
What is per capita by right of representation?
What is per stirpes?
What is the result of a pretermitted child?
