Omitted Spouse: Definition and How It Works in California

By Eric Ridley, attorney, Ridley Law. Updated September 2026.

An omitted spouse is a spouse married after a will or trust was signed and never added to it. California law gives that spouse a share of the estate unless the document shows the omission was intentional.

How it works in California

Prob. Code, §§ 21610 through 21612 protect a spouse who marries the person who made the will or trust after the document was already signed. Under § 21610, the omitted spouse receives the decedent’s half of the community property and quasi-community property, plus the share of the decedent’s separate property the spouse would have taken by intestate succession, capped at one-half of that separate property. That share applies unless one of a few exceptions does.

Those exceptions matter. If the will or trust shows the omission was intentional, or the person provided for the new spouse outside the document, or the spouse signed a valid waiver, the omitted spouse statute doesn’t apply. Absent one of those exceptions, the new spouse doesn’t have to prove anything went wrong; the statute gives them a share automatically.

Why it matters

Remarriage is one of the most common reasons an old estate plan stops matching a family’s actual situation. Say someone signs a trust naming their two adult children as sole beneficiaries, remarries five years later, and never updates the trust before dying. The new spouse can claim an omitted spouse share of the estate even though the trust never mentions them, which can cut into what the children expected to receive.

Common mistakes

Assuming a prenuptial agreement automatically waives omitted spouse rights; it only does so if the waiver language covers this specific claim. Not updating a will or trust after a marriage, which is what creates the omitted spouse problem in the first place. Assuming the new spouse gets nothing just because the document was signed before the marriage.

Related terms

• Community property: the marital property rules that interact with an omitted spouse’s claim on the estate.
• Elective share: a protection some states give a surviving spouse; California uses the omitted spouse statute and community property rules instead.
• Pretermitted heir: the equivalent protection for a child born or adopted after the document was signed.

Part of the California estate planning glossary.