Spouses benefit from marital rights under many state probate laws that give them special inheritance rights, including priority for appointment as executor for a deceased spouse’s estate, a right to seek a family allowance for life’s necessities during the pendency of an administration, an ability to pursue a spousal property petition and possibly avoid probate altogether, and, in some states, community property rights.  Entitlement to these rights and the legal procedures that need to be followed to protect them are complex, especially when complicated by family law issues like prenuptial agreements.  If you are a surviving spouse, even if you were in the middle of a divorce at the time of death, we can help you.

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 a 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 to 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.

Learn More

The Ultimate Guide to Spousal Lifetime Access Trust

What is a spousal lifetime access trust or SLAT? A Spousal Lifetime Access Trust (also known as a “SLAT”) is an irrevocable trust where one spouse is the grantor, and the other spouse is the beneficiary. The grantor spouse will execute the trust, and the beneficiary spouse will have limited access to the trust assets. It’s essential that the beneficiary spouse’s access be limited to protect the assets from creditors and estate taxes.

The Guide to Pretermitted Heirs, Spouses, and Children

What is a pretermitted heir, spouse, or child? A pretermitted spouse or child is simply a spouse or child who became the decedent’s spouse or was born to the decedent after the decedent’s will or trust was created. Section 21610 of the California Probate Code outlines the rights of a pretermitted spouse, and Section 21620 outlines the rights of a child.


We have decades of experience getting results for people like you. Our team will listen to you, investigate your claims, develop a strategy aimed at accomplishing your goals efficiently and cost-effectively, whether that’s through negotiated resolution, formal mediation or trial, so that you can move on with your life. Schedule a free consultation, or give us a call.  


We represent beneficiaries, heirs, administrators, executors, trustees and conservators/conservatees in cases involving disputing a will or trust, claims of breach of fiduciary duty, fiduciary misconduct and fraud, investment mismanagement, financial elder abuse, incapacity, and undue influence.


Stepping into the role of “Personal Representative” to handle your loved one’s trust, will, or probate estate can be an overwhelming experience. We have decades of experience helping individual and institutional administrators, executors, and trustees fulfill all their duties efficiently and cost-effectively. Although just a summary, below are many of the things we can help you with, and we’re always happy to answer your questions.


When your loved one is incapable of handling their affairs, whether financial or their own care, it may be time to consider a judicial conservatorship of the person (personal health and welfare of the conservative) or conservatorship of the estate (care of the conservatee’s finances), especially where your loved one may be the subject of financial or elder abuse. Often family members believe that a power of attorney or healthcare power may be sufficient, but often they are wrong. Sadly, even more often the person who holds those powers is the one abusing the loved one. Whether you need help analyzing whether a conservatorship is warranted, or need help defending against a frivolous conservatorship action, we can help.


Financial elder abuse is one of the fastest growing areas of law, affecting one of the most vulnerable sectors of our society. California’s elder abuse statutes provide extra protections to those 65 years of age and older who were victimized by the fraud or theft of another, most often a “loved one” who takes advantage of mom, dad, aunt, uncle, grandma or grandpa’s incapacity. We have successfully prosecuted and defended hundreds of financial elder abuse cases. 

Our Case Results

RMO has a proven track record of protecting people and defending legacies.

Third Time’s The Charm - Eight Figure Trust Saved for Surviving Spouse
Represented the surviving spouse of her deceased husband’s high eight figure trust estate, which, through some ill-advised estate planning, had left the client as a co-fiduciary with her estranged stepson and a bungling property manager. Prior litigation with previous counsel resulted only in our client’s resignation, which allowed the bunglers to further waste trust assets. Secured a final, global resolution for the surviving spouse that secured the resignations of the “bad” trustees and replaced them with an institutional trustee who is working to remedy their bad acts and save the estate.
Long Overdue Child Support Secured from Deadbeat Dad’s Estate
Represented former spouse in collecting long-unpaid child support through creditor’s claim procedure from her ex-husband’s estate.
Retirement Benefits Secured for Surviving Spouse
Represented the surviving spouse in successfully defending her status as beneficiary of her deceased husband’s retirement benefits against contest by the decedent’s former wife and children, who had claimed lack of capacity and undue influence.
Disposed of Interloping Ex-Spouse’s Trust Contest
Represented the surviving spouse trustee of her deceased husband’s trust against a trust contest on the grounds of incapacity and undue influence by the husband’s first wife - and his children from that marriage - all of whom had been disinherited by the decedent. Deployed tried and true probate litigation tactics to put the interlopers to task, which resulted in the court dismissing their claims, saving significant time and money.
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