Estate of Shannon,
274 Cal. Rptr. 338 (1990).

Procedure: Petitioner executor sought review of an order of the Superior Court of San Diego County (California), that denied a petition of deceased wife for determination of heirship as an omitted spouse under Cal. Prob. Code § 6560, on grounds that deceased wife was a pretermitted spouse and did not fall under any exceptions of Cal. Prob. Code § 6561 that would preclude a share in deceased husband's estate.

Facts: Russell Shannon (T) executed his will in 1974, naming his daughter sole beneficiary and cxccutrix. T married in 1986 and died in 1988; T made no changes in his will, which was admitted to probate. T's wife Lila (P) petitioned the probate court to determine heirship. The petition was denied. P appeals. During the pendency of the appeal, P died and her son was substituted as appellant.

Issue: Was P a pretermitted spouse?

Holding: Yes. Order reversed and case remanded.
The Superior Court, San Diego County, denied petition, and wife appealed. The Court of Appeals held that: (1) will did not evidence intent to disinherit wife; (2) evidence did not establish that testator intended to provide for wife outside of his will in lieu of her taking under it; and (3) evidence did not show that wife waived her rights to share in estate.

Analysis: Deceased husband as an unmarried widower executed a will that named respondent daughter as executrix and sole beneficiary. The will contained a disinheritance clause. Deceased husband married deceased wife. No changes were made to the will and deceased husband died. The will was admitted to probate and respondent was named executrix. Deceased wife filed a petition for determination of entitlement to the estate distribution as an omitted surviving spouse under Cal. Prob. Code § 6560. The probate court issued an order denying deceased wife's petition to determine heirship. Deceased wife appealed and during the pendency of the appeal, she died. Her son, petitioner executor, was substituted in her place. Petitioner contended that deceased wife was a pretermitted spouse under § 6560 and did not fall under any exception of Cal. Prob. Code §6561 that would preclude a share in deceased husband's estate as an omitted spouse. The court reversed the order denying the petition and held that because deceased husband failed to provide for deceased wife in the will, she was an omitted spouse under § 6560. The court ruled that respondent met none of the exceptions under § 6561.