Expressly disinheriting, or simply omitting, a child as a beneficiary in one’s will or trust can occur for a wide variety of reasons; such as, a quarrel, an estrangement, not wanting to give more to a child who has plenty, or not wanting to give to a child who will abuse or squander their inheritance.  What happens when a decedent’s will or trust does not provide for a decedent’s child?   

First, was the child born or adopted after the decedent’s testamentary documents were already executed?  In California, section 21620 of the Probate Code generally presumes that, “… a[n omitted] child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, … shall receive a share in the decedent’s estate … .”  A testamentary instrument is a will or trust.

The statutory presumption has three (3) important exceptions (section 21621):  Did the Decedent’s testamentary instrument itself show the decedent’s intention to omit the child; did the decedent give substantially all of the estate to the omitted child’s other parent; and did the decedent otherwise provide for the omitted  child and express that intention in the testamentary instrument, by the amount of the other gift, or otherwise.

With after born/adopted children, therefore, California’s law generally favors an omitted child receiving a share except when the decedent’s contrary intention is apparent from the will or trust, other gifting, or otherwise.  Other gifting includes death benefits from insurance and retirement plans and lifetime gifts.

If the presumption applies, the after born or adopted child receives an “intestate share” in the decedent’s estate.  That is, what he or she would have received as an heir had the decedent died with no will or trust. 

Second, was the omitted child already born or adopted at the time when all of the decedent’s testamentary instruments were executed.  In California, section 21622 of the Probate Code provides if, “… the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the child, the child shall receive a share in the estate … .” 

On August 3, 2020, in KIMBERLY RALLO et al., v. VIRGINIA O’BRIAN (Case # B29052), California’s Second District Court of Appeals in Los Angeles addressed whether the general disinheritance provision – one that does not name the disinherited person(s) — in deceased actor Hugh O’Brien’s trust could defeat a claim brought under section 21622 by his children who were living when Hugh O’Brien executed his trust.  

The children alleged that Hugh O’Brien did not know they were born and would have provided for them had he known.  They argued that it was enough simply to show that he was simply unaware of their births and against the general disinheritance provision that said, “I am intentionally not providing for … any other person who claims to be a descendant or heir of mine under any circumstances and without regard to the nature of any evidence which may indicate status as a descendant or heir.”

The Appellate Court disagreed: “[A]n omitted child’s recovery under section 21622 is conditional: (1) the decedent must have been unaware of the child’s birth (or mistaken about the child’s death), and (2) the decedent must have failed to provide for the unknown child solely because of that lack of awareness (or mistaken belief).”   The children failed the second requirement.

The Court found that a general disinheritance provision showed that the decedent’s failure to provide was not “solely” due to his being unaware of a child’s existence or mistaken belief as to the child’s death. Rather, it was because he did not intend to give his omitted heirs a share.  

Thus, at least in California’s Second District Court of Appeal (Los Angeles County), a general disinheritance provision defeats claims by omitted children whether they are born before or after the will or trust.  Anyone confronting the issues discussed above should consult an attorney for guidance.

          Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at dennis@DennisFordhamLaw.com and 707-263-3235.