Q. My fiancé and I will soon marry. We both have our Wills and Trusts already set up as we wish, as we both have children from prior relationships and we each want our own assets to go to our own kids. Is it still necessary to update our Wills and Trusts?

A. Yes! Unless you update your Wills and Trusts (“testamentary instruments”), California law will, essentially, re-write them for you, and provide your new spouse with a share of your estate! Essentially, the law would presume that you inadvertently omitted your spouse, and would “correct” that omission for you by providing a testamentary share to him or her! This problem and the California “correction” is referred to as the matter of the “pretermitted spouse”.

California law provides that, with the exceptions noted below, if you marry after your Wills and/or Trusts were prepared and without any clear intention expressed as to your whether you intend to leave anything to your fiancé or new spouse, that – your now “omitted spouse” — would, upon your later demise, receive a forced share of your estate measured as follows:

1) one-half of your community property (if any); and

2) a full share of your separate property as would be normally allocated to a surviving spouse under the law of intestacy (i.e., the law controlling the disposition of a decedent’s estate where he or she dies without a Will or Trust).

The law does provide for exceptions to the above, as follows:

  1. a) where your wishes are “intentional and that intention appears from the testamentary instruments”;
  2. b) where you provided for your surviving spouse outside of the estate, and the evidence clearly shows that this was intended by you to be in lieu of a share of your estate;
  3. c) where your surviving spouse made a valid waiver of his/her right to a share of your estate.

Given the above, the best plan is for each of you to update your Wills and Trusts, either before the date of marriage or very soon afterward, and to expressly recite, in those very documents, that it is your respective intentions not to provide for your new spouse.

I am glad you asked that question, as otherwise this problem could –down the road—lead to very hurt feelings and irrevocably fracture relationships.