One of the most common causes for disputes in estate planning is outdated documentation failing to reflect current familial relationships. Such situations often lead to legal tussles over 'forgotten' or intentionally omitted spouses and children.

The Forgotten Spouse Dilemma

In California, neglecting to include your spouse in your will or trust can result in them becoming an 'omitted spouse'. An omitted spouse does not just fade away; they're entitled to a significant share of your estate.

Types of Property: Community, Quasi-community, and Separate

Inheritance is divided into three categories - community, quasi-community, and separate property. Community property is everything you and your spouse acquired during your marriage, excluding gifts or inheritances. Quasi-community property includes assets acquired while living in another state that would have been considered community property in California. Lastly, separate property consists of anything owned prior to marriage, or that was received as a gift or inheritance during the marriage. According to California's Probate Code sections 21610-12, an omitted spouse is eligible to claim half of each type of property.

Read more: What Goes Into a Trust?

Intentional Omission and Prenuptial Agreements

Intentional omissions are a different ball game. If there's evidence you meant to exclude your spouse, or they waived their inheritance rights, or you left them something outside of the will, they might not qualify as an omitted spouse according to Section 21611 of the Probate Code. Prenuptial agreements also serve as crucial evidence that a spouse knowingly agreed to be excluded from the will or trust.

The Case of the Forgotten Child

A child omitted from a will or trust can also claim a share of your estate. However, the share depends on several factors such as your explicit intent to exclude them, whether you left the bulk of your estate to their other parent or provided for them outside of the estate. According to California Probate Code section 21620, an omitted child can inherit as if the parent had died without a will or trust unless specific exceptions apply.

Read more: Never Leave Your Estranged Child (or Anybody) a $1 Inheritance

The Importance of Regular Estate Plan Updates

Despite carefully drafting wills and trusts, issues may arise if these documents aren't updated to reflect changes in family dynamics. Therefore, consulting with an experienced estate planning attorney is imperative to ensure all potential scenarios are considered, and your intent is accurately reflected in your estate plan.

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