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Administering a Will With an Omitted Spouse

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Suppose your loved one asked you to serve as the personal representative of their estate. This means that you’re in charge of the estate administration after their death. A personal representative is appointed under the terms of a validly-executed will. While many estate administrations are fairly straight forward, there are circumstances that can make them more complex. For example, a surviving spouse left out of the will has statutory right to inherit certain assets. As a result, you may find yourself in charge of overseeing an estate that is facing a legal challenge by a surviving spouse seeking his or her share of the assets.

What to Consider When Handling a Challenge From an Omitted Spouse

As the personal representative of the estate, you must represent the estate’s interests when dealing with the surviving spouse. The surviving spouse may be clearly entitled to a share of the estate under the terms of California law. In other circumstances, however, the surviving spouse may not be entitled to a share of the estate, regardless of the provisions made for omitted spouse under the will.

The following are the questions every personal representative should carefully consider when dealing with a dispute brought by an omitted spouse:

  1. Is there evidence that indicates that the surviving spouse was omitted intentionally?
  2. Does the deceased spouse’s will specifically state that the surviving spouse is to be disinherited?
  3. Did the deceased spouse give property to the surviving spouse outside of the will? An example would be if the deceased spouse named the surviving spouse as the beneficiary of a life insurance policy.
  4. Did the transfer of assets to the surviving spouse show the deceased spouse intended for the transfer to provide for the surviving spouse in place of providing for the spouse under the terms of the will? Supporting evidence is written or verbal statements made by the deceased spouse before they died. The statements must indicate this was their intent. Further supporting evidence is if the amount transferred to the surviving spouse outside of the will was substantial.
  5. Was a written agreement signed by the surviving spouse waiving their right to share in the deceased spouse’s estate upon his or her passing? While this is rare, it does happen in some cases. If the surviving spouse willingly entered into such an agreement, he or she would not be entitled to receive the share of a pretermitted spouse under the law.

In Conclusion

If you’re handling an estate involving a legal dispute, it’s important to obtain guidance from a knowledgeable attorney. Representing the interests of the estate in these cases requires the assistance of someone with a solid understanding of the rules and laws relating to estates in California. Fortunately, we are here to help. We encourage you to check out our client testimonials today for more information.

Scott Grossman

Scott Grossman


The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307

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