Legal Definitions - pretermitted spouse

A pretermitted spouse refers to a person who marries an individual after that individual has created a will, and who is then unintentionally omitted or not provided for in that existing will. The law generally presumes that if someone marries after making a will, they would have intended to provide for their new spouse. Therefore, if the will is not updated to include the spouse, and there's no clear evidence that the omission was intentional (like a prenuptial agreement or a specific statement in a later document), the spouse may be considered "pretermitted." This legal status often allows the spouse to claim a share of the deceased's estate, typically what they would have received if the deceased had died without a will (an intestate share) or a statutory elective share, depending on the jurisdiction's laws. The purpose of this rule is to prevent accidental disinheritance of a new spouse due to oversight or sudden death before a will can be updated.

Here are some examples illustrating the concept of a pretermitted spouse:

• Example 1: Unintentional Omission Due to Oversight

  Sarah drafted a will in 2015, leaving all her assets to her two adult children from a previous marriage. In 2020, Sarah married Mark. She intended to update her will to include Mark but tragically passed away unexpectedly in 2023 before she had the chance to do so. Since Sarah's will was made before her marriage to Mark and was never updated, Mark would likely be considered a pretermitted spouse. The law would presume her omission of him was unintentional, allowing him to claim a share of her estate, typically what he would have received had Sarah died without a will.

• Example 2: Intentional Omission (Not a Pretermitted Spouse)

  David created a will in 2010, bequeathing his entire estate to his favorite charity. In 2018, David married Emily. Before their marriage, they signed a comprehensive prenuptial agreement explicitly stating that neither spouse would inherit from the other's estate and that their existing wills would remain valid. David passed away in 2022 without ever changing his 2010 will. In this scenario, Emily would *not* be considered a pretermitted spouse. Although David's will predates their marriage and does not provide for her, the prenuptial agreement serves as clear evidence that David's omission of Emily from his will was intentional, not an oversight. Therefore, the legal presumption of unintentional omission is overcome.

• Example 3: Sudden Death After Marriage

  Maria made a will in 2019, leaving her entire estate to her sister. In January 2024, Maria married Robert. They had discussed updating her will to include him, but Maria suffered a fatal accident in February 2024, just weeks after their wedding, before she could consult with an attorney to revise her will. Robert would likely be considered a pretermitted spouse. Maria's will was created before her marriage to Robert, and her sudden death prevented her from making provisions for him. The circumstances strongly suggest that her failure to include him was an unintentional oversight, allowing Robert to seek a share of her estate as a pretermitted spouse.