Inheritance Rights of Omitted Heirs


California law protects the inheritance rights of surviving spouses, registered domestic partners, and children who are unintentionally omitted (ie, disinherited) under the will and / or living trust of a presumed 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 disabled 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 sole 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 consequent spouse or child; Second, if the decedent otherwise provided for the subsidiary spouse or child outside of the will or trust (such as life insurance, pay on death accounts, or temporary lifetime gifts to the surviving spouse or child); Third, if the surviving spouse voluntarily agreed to waive his or her inheritance rights (eg, a premarital agreement); and, Fourth, if the presumed parent cave 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 (ie, an intestate share). Thus, an omitted spouse is entitled to receive up to one-half of the threatened spouse's separate property, in addition to his or her one-half interest in the couple's community and quasi-community property.

The omitted heir's inheritance comes first from the threatened 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 particular gifted property using a specific gift to satisfies the omitted heir's inheritance would defeat the disabled 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.


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Dennis A Fordham


Author: admin

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