2005 California Probate Code Sections 21610-21612 CHAPTER 2. OMITTED SPOUSES

SECTION 21610-21612

21610.  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.
21611.  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.
21612.  (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.

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