Legal Question in Wills and Trusts in California

You will need a new will. The new wife is not entitled to a share as a matter of some inalienable right, but unless your will is written carefully, leaving her out would entitle her to contest the will. The better course is to discuss it with her, and make a unified and mutual plan for your estate and hers that follows your mutual wishes. Many people who remarry at your age both have grown children and often later generations as well, and they make sure to leave each of their estates to their respective issue. Other times, even in later years they decide they want to fully blend their families and each makes a will that assures the issue from both sides benefit. About the only thing you would never want to do, is just leave that old will in place.

I respectfully disagree with Mr. McCormick. If you remarry, and do not write a new will, your new wife will become a pretermitted spouse under California law.

California has a pretermitted spouse statute. Probate Code sections 6560 and 6561 provide that if a person marries after making a will, and no provision is made fo rthe new spouse, that new surviving spouse may take an intestate share upon the testator's (you, the will maker) death.

There are exceptions to this rule, as well, which can get pretty involved.

As to any community property that you acquire while married in your new marriage, one-half of the community property is already owned by the surviving spouse. Only your half would be subject to disposition under your will. (Probate Code, section 100.) If your will attempts to dispose of community property without her consent, this triggers what is known as a "widow's election."

I would strongly suggest that you speak to a competent estate planning attorney, so that you can understand what would transpire, and plan accordingly.

You should redo your estate plan to include a will and trust to clarify (a) that all of your property is your separate property and (b) what is going to help with it. This is not difficult to do but is important to insure that your wishes are followed. If we can be of assistance, please do not hesitate to call me.

Jon Reich

310.478.2541

IMPORTANT NOTICE: The above response is not intended to, and does not, create an attorney-client, fiduciary or other confidential relationship with the responder. Neither does it constitute the providing of legal advice or services or the giving of a legal opinion by the responder. Such a relationship can only be created, and legal advice and/or legal services provided, pursuant to a written agreement with the responder. Accordingly, no obligations of any kind are assumed with respect to any matter or question presented. It should also be noted that legal issues are often time sensitive and legal rights may be lost or compromised if you do not act in a timely fashion.