Code Section Group

Probate Code - PROB


  ( Division 11 enacted by Stats. 1990, Ch. 79. )


  ( Part 6 added by Stats. 1997, Ch. 724, Sec. 34. )

CHAPTER 2. Omitted Spouses [21610 - 21612]
  ( Chapter 2 added by Stats. 1997, Ch. 724, Sec. 34. )


Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate:

(a) The one-half of the community property that belongs to the decedent under Section 100.

(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.

(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 testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

(Added by Stats. 1997, Ch. 724, Sec. 34. Effective January 1, 1998.)


The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:

(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.

(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate.

(Added by Stats. 1997, Ch. 724, Sec. 34. Effective January 1, 1998.)


(a) Except as provided in subdivision (b), in satisfying a share provided by this chapter:

(1) The share will first be taken from the decedent’s estate not disposed of by will or trust, if any.

(2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all beneficiaries of decedent’s testamentary instruments in proportion to the value they may respectively receive. The proportion of each beneficiary’s share that may be taken pursuant to this subdivision shall be determined based on values as of the date of the decedent’s death.

(b) If the obvious intention of the decedent in relation to some specific gift or devise or other provision of a testamentary instrument would be defeated by the application of subdivision (a), the specific devise or gift or provision may be exempted from the apportionment under subdivision (a), and a different apportionment, consistent with the intention of the decedent, may be adopted.

(Added by renumbering Section 26112 by Stats. 2003, Ch. 32, Sec. 17. Effective January 1, 2004.)

PROBProbate Code - PROB