Spousal Rights and Omitted Spouses in Probate

Probate Litigation Lawyers Enforcing Marital Rights to Estates

Our probate litigation lawyers represent a surviving or omitted spouse to ensure they receive the property to which they are entitled under California law.Surviving spouses face considerable grief upon the death of a husband or wife. However, they must also grapple with sorting out the financial affairs of the estate. Surviving spouses should be aware that the California Probate Code protects them. However, to assert that protection, a surviving spouse must bring the issue before the probate court. Our San Francisco probate litigation attorneys represent a surviving spouse and an omitted spouse. We ensure they receive the property to which the law entitles them.

Surviving Spouses Can Receive Both Community and Separate Property

California is a community property state. This means all money or property earned during the marriage is vested automatically in equal shares between spouses. Upon one partner’s death, the surviving spouse may receive up to one-half of the community property. If there is no will or trust, then surviving spouses may also inherit the other half of the community property, and take up to one-half of the deceased spouse’s separate property.

“Omitted Spouse” in the California Probate Code

The probate term “omitted spouse” refers to a person who marries an individual who already has an executed estate plan, which the individual then fails to change or amend after marriage. In such a scenario, the unmentioned spouse is “omitted” from the testamentary instruments. The California Probate Code protects omitted spouses by allowing them to take the statutory share of the estate as discussed above, unless:

  • The estate plan specifically disinherited the spouse, or
  • The spouse received sufficient assets outside the estate, or
  • The spouse executed a valid waiver (either by premarital agreement or other legally enforceable document or contract)

Bay Area Probate Litigation Attorneys Representing Omitted Spouses

It can be emotionally taxing for a grieving spouse to have to litigate against their loved one’s estate in probate court. However, omitted spouses must stand up for their marital rights or lose them forever. Charles Triay, the founder of Triay Law Office, has been practicing contested probate litigation for over 30 years. He has provided unsurpassed representation in notable cases throughout Northern California. Unlike other law firms, the Triay Law Office gives clients the option to pay attorney fees an hourly or contingency basis. Please contact our probate litigation lawyers to assert your marital rights against an estate.