For the second post in this series about common terms used only estate planning, let’s talk about the “omitted spouse,” or the reason you should update your estate planning documents as soon as you get married.

Let’s look at an example. John decided to execute a will in his early 20s, after inheriting from his grandmother’s estate, leaving all of his estate to his brother Thomas. When he is 28, he falls in love with Jane, and the two marry. John fails to update his will. Shortly after, Jane becomes pregnant, then they buy a house, and soon they are busy being new parents. John passes away suddenly, survived Jane and their baby. Who inherits John’s estate?

Absent the omitted spouse statute, Thomas would inherit all of John’s estate, including John’s half of all community property (such as the house), and Jane would keep her half of their community property. Under Washington State’s omitted spouse statute (RCW 11.12.095(3)) , the omitted spouse can receive an amount from the testator’s estate equal to what he or she would’ve received if the testator would’ve died intestate. In this case, Jane would inherit all of the community property (including the house), and half of John’s separate property (because John has a child; if there was no child, the percentage would be higher). However, the court has the discretion to reduce the amount given, even eliminate it, if there is evidence that the omission was not accidental.

If you do not want to unintentionally disinherit your spouse or domestic partner, it is critically important to update your will upon marriage or registration of a domestic partner.

Side note: a testator can purposely disinherit their spouse by showing that the omission was intentional, and thus avoid triggering the omitted spouse statute. However, even a disinherited spouse may be able to receive a portion of the estate by petitioning the court for a family support award.