Is a pretermitted spouse (aka an omitted spouse)—generally, a spouse who is not a named beneficiary in their deceased spouse’s estate plan, which was executed by the decedent prior to this marriage,[1] entitled to inherit his or her interest in the deceased spouse’s property without having to go through the formal estate administration process in Probate Court? Can a pretermitted spouse file a Spousal Property Petition to expedite probate proceedings? How can a pretermitted putative spouse (i.e., a spouse who is unaware their spouse was already married to someone else) avoid probate?

In this article, we will go over how to avoid probate in California as a putative or pretermitted spouse. We’ll also discuss whether the rights of such a spouse include the ability to seek a Spousal Property Petition order.

Why Is It a Good Idea for Spouses to Try to Avoid Probate in California?

As background, if a decedent dies intestate (i.e., without having executed a valid will or trust instructing how to distribute their property upon death), their estate will be administered in the Probate Court,[2] and the assets of the estate will pass via the laws of intestacy—statutes indicating which of a decedent’s heirs stand to inherit from the decedent’s estate when the decedent does not have an estate plan. The basic purposes of administering a decedent’s estate are to preserve and protect the estate; to satisfy and discharge all debts and claims against the estate, including the expenses of administration; and to distribute all estate assets at a proper time to those persons who are entitled to receive them.

Estate administration can not only be a lengthy and time-consuming process, but it can cost the prospective heirs of the estate a significant amount in legal fees and expenses. The Probate Code, however, offers protections to certain heirs of intestate estates that allow them to receive their shares of a decedent’s assets outside of the formal administration process. If heirs are well-versed in how to avoid probate, they can save both time and money, as well as receive their inheritances faster.



Spousal Property Petitions: How to Avoid Probate in California as a Surviving Spouse

One such protection applies to a decedent’s surviving spouse pursuant to Probate Code sections 6401, 13500, and 13650. These statutes provide that when a spouse dies leaving property to pass to the surviving spouse,[3] whether through intestacy or through a will, the property can pass to the survivor outside of the formal probate administration process; this expedited procedure is carried out using a Spousal Property Petition document. The policy behind these statutes is to allow the court to determine—and thereafter confirm to the surviving spouse—the property that will pass to the spouse from the decedent through a quicker and less expensive procedure than the usual probate proceedings.[4]

The protections afforded by the Spousal Property Petition make inherent sense: If property is to pass to a surviving spouse, the surviving spouse should not be forced to incur significant costs administering his or her portion of the estate, and the costs of administration should not be borne from his or her share.

The Right of a Pretermitted Spouse to Bring a Spousal Property Petition

Despite the clear public policy in support of a surviving spouse receiving his or her share of a decedent’s estate outside of formal estate administration, there is a potentially significant oversight in the Probate Code when the surviving spouse takes his or her share as an “omitted spouse” (aka a pretermitted spouse) pursuant to Probate Code section 21610, as it does not explicitly state whether a pretermitted spouse is entitled to file a Spousal Property Petition pursuant to section 13500.

What Are the Inheritance Rights of Pretermitted Spouses in California?

To review, a pretermitted spouse (with a few exceptions) is a surviving spouse who is not provided for in any will or trust that the decedent executed prior to that marriage. In such a situation, the pretermitted spouse shall generally receive a fixed share in the decedent’s estate,[5] which consists of one-half of the decedent’s community property; one-half of the decedent’s quasi-community property; and a share of the decedent’s separate property that is equal in value to that which the spouse would have received if the decedent had died intestate, but not more than one-half the value of the decedent’s separate property. Thus, even if the decedent dies without issue, leaving their surviving spouse to receive all of their separate property through intestacy, the pretermitted spouse statute caps the pretermitted spouse’s separate property entitlement at one-half its aggregate value.

Pretermitted Spouse’s Right to Seek a Spousal Property Petition Order

Aside from the difference in value of the separate property interest of the surviving spouse, the intestate and pretermitted spouse statutes treat the surviving spouse equally—whether the surviving spouse is taking because the decedent died intestate, or whether the surviving spouse is taking because he/she is not provided for in the decedent’s testamentary documents. The question arises, then, whether a pretermitted spouse is entitled to use the expedited procedure of the Spousal Property Petition to receive his or her interest in a decedent’s estate outside of formal probate administration, despite the fact that a pretermitted spouse’s interest is not specifically contemplated by the statute authorizing this procedure.

This issue was considered by the Court of Appeal in Estate of Sax.[6] In this case, the decedent died with a will in which he left his entire estate to his former spouse; the will failed to provide for his putative surviving spouse and was executed prior to his current marriage.[7] The putative surviving spouse filed a Spousal Property Petition seeking title to one-half of the decedent’s estate as the decedent’s pretermitted spouse.[8] The trial court found that the putative spouse was the decedent’s pretermitted spouse and granted the putative spouse’s petition over the objection of the former spouse. The Court of Appeal affirmed, holding that the putative pretermitted spouse took the decedent’s undivided one-half of the property by means of her Spousal Property Petition.[9]

Estate of Sax: Pretermitted Spouses Can Bring a Spousal Property Petition

Thus, Estate of Sax appears to stand for the proposition that a pretermitted spouse may in fact bring a Spousal Property Petition to receive his or her statutory share of a decedent’s estate, even though the surviving spouse does not take a share of an intestate estate or an interest in a testamentary document—as provided in the statue that authorizes such a Petition (section 13500). However, it is important to note that the court’s holding in Estate of Sax addresses whether a pretermitted putative spouse has the same inheritance rights as those of a pretermitted non-putative surviving spouse, and not specifically whether the use of a Spousal Property Petition was the proper procedure to enforce the spousal rights of pretermitted spouses.

Why the Right to Use a Spousal Property Petition Is Important for Pretermitted Spouses

Further, denying a pretermitted spouse the right to receive his or her share in her deceased spouse’s estate by means of a Spousal Property Petition would seem to frustrate the purpose of the pretermitted spouse statute: “The policy of law which underlies [the pretermitted spouse statute] has been declared to be the social disfavor toward a testator’s failure to provide for a surviving spouse . . . [t]he law presumes that the subsequent marriage of a testator has wrought such a change in his condition in life as to cause him to destroy or cancel a previous will; and does not admit of evidence to the contrary unless provision has been made according to law for wife and children who have survived him.”[10] The original statute providing for a pretermitted spouse, Civil Code section 1299, stated, in pertinent part, that “if after making a will, the testator marries, and the wife survives the testator, the will is revoked.”[11] Subsequent iterations of the pretermitted spouse statute limited the scope of the revocation to the pretermitted spouse, thus allowing him or her to take as though the decedent had died intestate.[12]

The public policy supporting the allowance of a pretermitted spouse’s share, therefore, would support putting the pretermitted spouse in the same shoes as a surviving spouse who takes from a decedent’s intestate estate. In such a case, as supported by the holding of Estate of Sax, the pretermitted spouse should be able to utilize the expedited procedure of the Spousal Property Petition to receive his or her share.

Takeaway: The Right of Pretermitted Spouses to Utilize a Spousal Property Petition Is Not Guaranteed

Because the statute that authorizes the expedited Spousal Property Petition appears to provide only two scenarios in which a surviving spouse may file such a petition to receive his or her interest in a decedent’s estate outside of formal probate administration (i.e. when the surviving spouse takes an intestate share, or when the surviving spouse is a designated beneficiary in the decedent’s testamentary documents), it remains unclear whether a pretermitted spouse can utilize this procedure. Although Estate of Sax seems to indicate that a Spousal Property Petition is available to a pretermitted spouse, because the court’s holding does not specifically address this point, it remains an unsettled issue of law. In other words, it is unclear how to avoid probate as a pretermitted spouse. While many pretermitted spouses have found success utilizing Spousal Property Petition orders in lieu of formal estate administration, there has been nothing in the law guaranteeing them that right.

If you are an pretermitted spouse contemplating how to avoid probate by means of a Spousal Property Petition in California, it is recommended you consult with a probate lawyer.

  • [1] Prob. C. § 21610.
  • [2] Another expedited procedure to administer the estate outside of court may apply if the decedent’s estate is valued at less than $166,250 in overall assets. See Prob. C. §13100.
  • [3] Section 6401 provides that a surviving spouse’s intestate share of a decedent’s estate is one-half the decedent’s share of the couple’s community property and quasi-community property, and all of decedent’s separate property if decedent left no issue; or one-half of the decedent’s separate property if the decedent left one child or the issue of one child; or one-third of the decedent’s separate property if the decedent left more than one child, one child and the issue of a predeceased child, or issue of two or more predeceased children.
  • [4] Estate of Bonanno (2008) 165 Cal.App.4th 7, 18–20.
  • [5] There are several exceptions to the rule, including when the decedent has expressed an intent not to provide for the surviving spouse and when the surviving spouse was a former paid caregiver for the decedent and their marriage lasted less than six months. See Prob. C. § 21611.
  • [6] (1989) 214 Cal.App.3d 1300.
  • [7] Id., at 1302–03. See also Recknor v. Recknor, (1982) 138 Cal.App.3d 539, 543. A “putative” marriage exists if at least one of the spouses believes they are legally married but the marriage is void “because of some legal infirmity.” In Sax, the decedent married his current spouse on the same day that he divorced his prior spouse, but this divorce was not entered into the court’s record until the following day; thus, the decedent remained legally married at the time that he attempted to marry his current spouse. The decedent died with a will executed before his current marriage that named his prior wife as sole beneficiary.
  • [8] Id.
  • [9] Id., at 1308.
  • [10] In re Duke’s Estate (1953) 41 Cal.2d 509, 512 (internal citation omitted).
  • [11] In re Ryan’s Estate (1923) 191 Cal.307, 309.
  • [12] Former Prob. C. § 70; In re Derruau’s Estate (1933), 133 Cal.App.769 (Will made before marriage was revoked only as to surviving spouse pursuant to Probate Code section 70)