Legal Question in Wills and Trusts in California

See a probate attorney at once. In many cases the law presumes that he would have meant to include you. Search [pretermitted spouse].

As an omitted spouse you have a statutory right to a portion of his estate. I am not sure if it would be 1/3 or 50%. It is governed by statute. You should hire an attorney to protect your interests, unless you have a particularly good relationship with the adult children. Otherwise assets might be disbursed without recognition of your rights.

I am sorry for your loss. Under Probate Code Section 21610, you may be an omitted spouse since your husband had executed his trust prior to your marriage, and he did not provide for you in his will and/or trusts. Because of this, as an omitted spouse you would be entitled to receive a share in the estate, as follows:

(a) The one-half of the community property that belongs to your husband. (You are already entitled to receive your own share of the community property).

(b) The one-half of the quasi-community property that belongs to your husband. Quasi-community property is property located in a non-community property state that would have been community property under California law.

(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a trust/will. In other words, that share is based upon what the intestate share would have been under the Probate Code (Probate Code Section 6401).

Under Probate Code Section 21611, you would not be entitled to a share of the estate if your husband had indicated that he intentionally had not provided for you, if you had made a valid waiver of any rights to his estate, or if he provided for you outside of his estate. From your post, it does not appear to be the case here.

Since your husband had two children, as an omitted spouse, you could be entitle to on-third of his separate property estate (Probate Code Section 6401. (c)).