An omitted spouse or omitted state registered domestic partner is a testator’s spouse or partner who married or registered a domestic partnership with the testator after the testator executed the testator’s will, who is not named or provided for in the testator’s will, and who survived the testator.
Under the omitted spouse statute, an omitted spouse or omitted domestic partner can receive an amount from the testator’s estate equal to what he or she would have received had the testator died intestate. However, the court has the discretion to reduce the amount given to an omitted spouse or omitted domestic partner, or decide that no amount at all is appropriate, based on a consideration of clear and convincing evidence of the testator’s intent, the community property and quasi-community property rights of the surviving spouse or partner, the various elements of the decedent’s scheme for distributing property upon the testator’s death, any marriage settlement or settlement in a domestic partnership, and any other provisions for the omitted spouse or partner outside the testator’s will.1
In order to prevent unintentionally disinheriting a spouse or partner, a testator should always consider updating his or her will upon marriage or registration of a domestic partnership.
A testator can purposely disinherit a spouse or domestic partner and avoid treatment of the spouse or partner as “omitted” by showing the intent to disinherit in his or her will or by other clear and convincing evidence that the omission was intentional. However, the testator should be aware that an otherwise disinherited spouse or domestic partner may still be able to receive the testator’s property by petitioning for a family support award. A person who wishes to disinherit his or her spouse or domestic partner completely, including by preventing an award of family support, should seek the advice of an attorney.