Pretermitted spouse what to do next - trust and will lawyer

The 5-minute Guide for the Pretermitted Spouse

As a pretermitted spouse, you likely have legal rights to an estate inheritance. Here’s a simple guide to help you get started in the process to get your inheritance.


What is a pretermitted or omitted spouse?

A pretermitted spouse simply is someone who married decedent after his or her will or trust was created or amended. As long as there is no estate planning document created after the marriage, the spouse may file what’s called a Petition to Determine Heirship to establish the spouse’s right to his or her intestate share of the decedent’s estate. California Probate Code Section 21610 outlines the rights of a pretermitted or omitted spouse.

How do I prove I’m pretermitted?

Generally, it’s clear and obvious when a spouse is pretermitted. In fact, in many of these situations the fact the spouse was omitted may not even be disputed or lead to a dispute about what the spouse is entitled to. This is because in most situations it’s simply a case of a will or trust pre-dating the marriage, and not having been updated after the marriage. If the spouse’s pretermitted status is disputed, then the omitted spouse simply needs to file a Petition to Determine Heirship with their county probate court and establish that he or she was married to the decedent after the estate plan was created. Probate litigation counsel should be contacted early to assert the spouse’s rights, which can often help avoid costly and drawn out legal proceedings.

How much does a pretermitted spouse inherit?

Under most state probate laws, a pretermitted or omitted spouse will receive the same amount they would have had there been no will or trust – also referred to as a “statutory share” or “intestate share.” For example, if there are no children, the surviving spouse will take the entire estate. If there is one child, the surviving spouse will take the decedent’s community property and 50% of the separate property. If there is more than one child, the surviving spouse will take the decedent’s community property and one-third of the separate property.

How do I get my inheritance as a pretermitted spouse?

The first step is consult an estate litigation attorney who can examine your claim and advise you on how best to proceed, whether that is contacting the estate administrator or trustee, or proceeding straight to court. If court is the best next step, your attorney will help prepare and file in the decedent’s county probate court a Petition to Determine Heirship. This notifies the county probate court charged with overseeing the administration of the decedent’s affairs, as well as the decedent’s other heirs, that you are claiming a share of the decedent’s estate. Filing the petition will begin the legal process and give you a mechanism to secure an amicable resolution of your claim – i.e. settlement – or to secure a judgment after trial. This process should be handled in consultation with a probate lawyer to ensure the best result.

It’s important to consult with a probate litigation attorney as soon as you learn of the decedent’s passing to ensure your claim is filed timely and before the decedent’s estate is distributed to his or her other heirs and beneficiaries. If you file your claim after the estate is already distributed, you are going to have a harder time collecting, it’s going to take a lot longer, and it’s going to cost you a whole lot more.

What if I’ve been disinherited?

In most states, including California, a spouse can be legally disinherited, and may have no rights to any estate assets. If you’ve been disinherited, you may have a claim to contest or challenge your disinheritance. For example, if you feel you were disinherited due to the undue influence of the decedent’s child, or a third-party like a caregiver, then you should seek counsel to ask about contesting the will or trust. These are highly emotional and complicated situations. If you have any questions about being disinherited, please call for a free consultation.

When should I contact a probate litigation attorney?

Generally, the sooner you contact a probate litigation attorney the better. Getting your rightful assets, as a pretermitted child, is much faster if everything is “figured out” before any estate assets are distributed to heirs and beneficiaries. It takes longer, and is more costly, if the pretermitted child’s inheritance has to be “taken back” from other heirs and beneficiaries who have already received their estate distributions.

How much does a probate litigation attorney cost?

Probate litigation can be expensive, but many lawyers, like RMO, offer alternative fee arrangements, including contingent fee and hybrid fee arrangements, if you cannot afford or do not want to pay hourly. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate litigation attorney who may be able to help you, and in an affordable way.

Do I need a probate litigation attorney near me?

We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney. At RMO, we help people like you address issues like these every day.

Have questions? Contact RMO now for a free consultation.
[email protected] or (424) 320-9444

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About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Scott Rahn, Founding Partner​

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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