Estate of Cooper

Opinion

BREINER, J.

*

The decedent, Abraham Cooper, died November 6, 1979, and was survived by two adult children, several grandchildren, and his widow, Bernice. On August 25, 1978, several months after the death of decedent’s former wife, Sara, decedent executed a will, leaving $5,000 in trust to each of his grandchildren and the residue to his two children. On January 3, 1979, decedent executed a codicil which stated, in part: “I intend to marry Bernice Schneider in January, 1979, and this Codicil is made in contemplation of and shall not be revoked by the marriage. ... In all other respects I confirm and republish my Will dated November 3, 1976.”

1

[120]

The decedent married Bernice Schneider on January 6, 1979, and remained married to her until his death. Following the probate of decedent’s 1978 will and the codicil, Bernice petitioned to revoke the probate and to recover her intestate share of the decedent’s estate. Respondents—the decedent’s children and grandchildren—demurred to the petition on the ground, inter alia, that the codicil expressed the decedent’s intention not to provide for Bernice.

2

The probate court, having determined that the codicil “specifically mentions the surviving spouse,” sustained the demurrer without leave to amend and entered judgment dismissing the petition. Bernice now appeals.

I

The question we are asked to address is whether the decedent’s surviving widow is a pretermitted spouse entitled to inherit her intestate share of the decedent’s estate. Probate Code section 70 provides: “If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received. (Stats. 1931, ch. 281, § 70, p. 590.)” Under this section the surviving spouse receives her share of tiie estate by succession and the balance of the estate passes under the will. (See generally