Omitted Spouse (aka Pretermitted Spouse)

If a testator executed a will before marriage, then subsequently dies before revising the will, either by codicil or by executing a new will, without providing for the surviving spouse as a spouse, then there is a legal presumption that the testator intended to include the new spouse, but failed to do so before his death.

To correct this omission, the law has developed an omitted spouse doctrine (aka pretermitted spouse doctrine) that generally allows the omitted surviving spouse to take an intestate share under the will.

Because living trusts (aka inter vivos trusts) have an increasingly important role in property distributions after death, a few states have modified the pretermitted spouse doctrine by including living trusts in the testator's property distribution to the surviving spouse. So if a living trust was created after marriage, or in contemplation of it, then the surviving spouse will not have been considered omitted, even if the last will was a premarital will.

There is some debate as to whether the omitted spouse doctrine is a spousal protection remedy or a corrective doctrine to fix a presumed mistake by the decedent. No doubt it was consider a dual remedy by many of the law's enactors, but, nowadays, the community property doctrine in community property states and the elective share doctrine in the separate property states have lessened the importance of the omitted spouse remedies.

Was the Spouse Intentionally Disinherited?

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Did the testator wish to disinherit the new spouse or simply failed to revise the premarital will before his death. The law has developed a few guidelines to ascertain intent.

If the spouse is provided for in the will, but before becoming the spouse, the omitted spouse doctrine still applies, since there is a presumption that the spouse would have gotten more as a spouse.

However, the presumption that the spouse was unintentionally omitted can be rebutted by any of the following:

  1. The intention to omit the spouse is evident from the will;
    • the intention must be clear that this particular spouse was to be omitted and the intention must have been made when the testator was considering marrying the spouse;
      • hence, general disinheritance clauses are not adequate, even one specifically disinheriting future spouses.
    • UPC §2-301 requirements to rebut presumption that omission was unintentional:
      • evidence from the will;
      • evidence from the will execution that the will was written in contemplation of marriage to the spouse;
      • general will provision that it is effective notwithstanding any subsequent marriage.
  2. Testator provided for spouse outside of the will;
    • any evidence can be considered to support that transfers outside of the will were in lieu of taking under the will, including the amount of the transfer.
  3. Spouse waived her rights to share under the will.

Remedy

The general remedy to the omitted spouse doctrine is to give what the spouse would have inherited under the state's intestacy statutes—in other words, the will is revoked as to the surviving spouse; hence, nonprobate assets are not subject to this remedy. UPC §2-301(a) further limits the omitted spouse's share to her intestate share after any devisements to descendants of the testator who are not also descendants of the surviving spouse.

As previously stated, the remedy providing for the omitted spouse has fallen in importance, since all states either have community property or an elective share law that also covers nonprobate assets. However, several exceptions exist where the omitted spouse doctrine might yield more for the surviving spouse.

One such case is when the marriage was short. The surviving spouse generally receives an intestate share that can be the entire probate estate if the decedent had no descendants who are not also descendants of the surviving spouse, or if the testator had such descendants, the surviving spouse still receives a minimum amount regardless of the length of marriage. UPC §2-102

However, in a community property state, only the earnings and the property acquired with those earnings during marriage are considered community property; hence, community property will probably not be significant in a short marriage, although the surviving spouse may be able to claim quasi-community property, if the couple just recently moved from a separate property state. Another scenario where the intestate share will probably be greater than the community property share is where the decedent had significant separate property before marriage or received such property as a gift or inheritance, and the separate property is not held as a nonprobate asset.

In many separate property states, as exemplified by the amended 2008 Uniform Probate Code, the elective share is limited by the number of years of marriage, where the elective share can only be applied to 100% of the augmented estate after 15 years of marriage (see Elective Share Of The Augmented Estate for table of percentages). However, if most of the decedent's property is held as nonprobate assets, the elective share will probably be greater than the surviving spouse's intestate share.

Another case where the omitted spouse remedy may be more beneficial than the elective share is where the surviving spouse is richer than the decedent, since her property is generally included in the augmented estate, which effectively eliminates her right to an elective share. In this case, she can still claim an intestate share of the decedent's property, since the rules of intestacy do not consider the wealth of the surviving spouse.