Many people understand the importance of reviewing their living trust, wills and other estate planning documents after a divorce. But how many people don’t think about it before they get married? Just because a spouse isn’t named as a beneficiary, doesn’t mean they’re not entitled to part of the estate. I recently came into contact with someone who needed help with their sister’s probate. The deceased sister prepared a will, then later got married and did nothing to update her will or estate plan. When she died, not too long after her marriage, her siblings who were her beneficiaries in the will, were surprised to find out that the unnamed new spouse was possibly entitled to a portion of her home, even though he contributed nothing, took a share of her personal property and left without a word. I believe it would have been an even more unpleasant surprise if her beneficiaries were her children (she had no children). His share needs to be determined even though it was separate property, even though his name wasn’t on the title or the loan, even though he didn’t maintain it, pay the mortgage or taxes, even though he put nothing into it, even though he abandoned the property and even though he didn’t respond to any of the notices of her probate hearings, of which he was personally served with. The law which is designed to protect spouses from accidental disinheritance, is an unpleasant surprise to those who aren’t aware of the law.
Some people think that by not naming a spouse (future spouse or current spouse) on a will that the unnamed spouse will receive nothing. There are rules to determine the size of the share that the unnamed spouse would receive and also exceptions to protect the estate. See PROBATE CODE SECTION 21610-21612 for an explanation.
One consolation is the fact that the court decided in the appeal of the case, Estate of Dito (2011) 198 Cal.App.4th 791, that the surviving spouse who is entitled to a share of a deceased spouse’s estate is not protected from later claims of financial elder abuse brought on behalf of the deceased spouse’s estate.
It’s important to review your estate plan every time you experience a major life change, such as marriage, a death, a birth or the estrangement of a loved one, just to name a few. To be sure of what the law says or how it applies to you, an attorney with experience in probate, wills and trusts should be consulted.