Pretermitted Spouse Law and Legal Definition

A pretermitted spouse is a spouse who has been omitted from a will. This term is used to refer to a spouse who would likely stand to inherit under a will, but was not named in the will because s/he was not yet married to the testator at the time the will was written. Most states have pretermitted-heir statutes, pursuant to which an omitted spouse receives the same share of the estate as if the testator had died intestate. However, the spouse will not be entitled to the share if the omission was intentional.

The following is an example of a state statute (Florida) on pretermitted spouse:

Fla. Stat. § 732.301. Pretermitted Spouse

When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the will; or

(3) The will discloses an intention not to make provision for the spouse.

The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.