Also known as: omitted spouses · omission of spouse · pretermitted spouse
Written by attorneys · grounded in primary & secondary sources — see below
A statutory protection awarding an intestate share to a surviving spouse married after the testator executed a will. The protection rests on the presumption that the testator did not intend to disinherit the new spouse. The presumption is rebutted if the will expresses an intent to disinherit the spouse, the testator provided for the spouse outside the will with the intent that the transfer substitute for a testamentary gift, or the spouse waived the right.
After marrying Oliver Okeke, Ophelia O'Brien learns that Oliver executed a will years earlier leaving everything to his brother. Oliver dies. Ophelia would normally claim an omitted-spouse share under the will, but she is later convicted of feloniously and intentionally killing Oliver. The conviction causes her to forfeit the omitted-spouse share, and the estate passes as if she had disclaimed it.
Odessa Okada executes a will naming her then-boyfriend Otis Olsen as a beneficiary but makes no mention of future marriage. Two years later she marries Otis. After Odessa dies without revising the will, Otis claims an omitted-spouse share. The court awards him the intestate share because the will does not show an intentional omission of a spouse and no outside transfer was made in lieu of a testamentary gift.
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The presumption arises when a person executes a valid will, later marries, and dies without revoking or revising the will. The new spouse then receives the share that would have passed in intestacy unless one of the three rebuttal grounds is proved.
An omitted-spouse claim supplies an intestate share when the will was made before the marriage and the spouse was unintentionally left out. An elective share is a statutory percentage available regardless of when the will was made and is subject to different calculation rules that vary by jurisdiction.
No. Courts applying the doctrine look only to the will itself and to transfers outside the will that the testator intended as a substitute. A gift in a revocable trust does not count because the statute refers exclusively to the will.
Yes. A person who feloniously and intentionally kills the decedent forfeits every benefit under the probate article, expressly including an omitted-spouse share. The estate is then distributed as if the killer had disclaimed the share.
…whether an amendment to an inter vivos trust can rebut the presumption that a pour-over will is revoked as to an unintentionally omitted spouse. We conclude that the plain and unambiguous language of NRS 133.110 does not permit evidence of an amendment to an inter vivos trust to rebut the presumption of a will’s revocation as to an…