California law protects the
inheritance rights of surviving spouses, registered domestic partners, and
children who are unintentionally omitted (i.e., disinherited) under the will
and/or living trust of a deceased person.
The law presumes that but for the fact that they were married, born, or
adopted (as relevant) after the execution of the will and/or trust that they
would have been included.  Those who qualify
as an omitted heir have inheritance rights in the decedent’s estate. 

            Generally speaking an omitted heir is
someone who was either married to, or born to, a now deceased person after that
person had executed their final will and/or living trust while alive.  An omitted child is typically a natural born
or adopted child of the deceased person.
In narrow circumstances a step child or foster child can qualify too.  Let’s examine the omitted spouse and the
omitted child separately.  A California
registered domestic partner is treated the same as a spouse.

            In addition, if a child who was
alive when the now deceased person executed the will or trust which omitted the
child may sometimes qualify as an omitted heir.
The child must prove that he or she was omitted either solely because the
now deceased person was then unaware that the child was born or solely because
he or she then believed the child to be deceased.  The child must prove his or her eligibility
to the satisfaction of the court.

            A surviving spouse, domestic
partner, or child, however, still does not qualify as an omitted heir in the
following circumstances:  First, if the decedent’s
will or trust shows that the decedent intentionally failed to provide for the
subsequent spouse or child;  Second, if
the decedent otherwise provided for the subsequent spouse or child outside of
the will or trust (such as with life insurance, pay on death accounts, or
substantial lifetime gifts to the surviving spouse or child);  Third, if the surviving spouse voluntarily
agreed to waive his or her inheritance rights (e.g., a premarital
agreement);  and, Fourth, if the deceased
parent gave substantially all of his estate to the omitted child’s other parent
(instead of to the child).

            An omitted heir is entitled to
receive an inheritance share that is equal to what they would have received had
the deceased spouse died without a will or trust (i.e., an intestate share).  Thus, an omitted spouse is entitled to
receive up to one-half of the deceased spouse’s separate property, in addition
to his or her one-half interest in the couple’s community and quasi-community

            The omitted heir’s inheritance comes
first from the deceased spouse’s separate property that passes outside of the
will or trust.  If that is insufficient,
then the balance comes out of the property that passes under the will and/or
trust.  It comes proportionately from
each beneficiary’s share.  The foregoing
allocation may be modified regarding any specifically gifted property using a
specific gift to satisfy the omitted heir’s inheritance would defeat the deceased
person’s intention. 

             The lesson to be learned here is that whenever
a person marries or has a child that person should review their estate planning
and have it updated as necessary.  That
way the person’s true intentions can be expressed and given effect. 

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”