California Disinheritance, Omitted Child, and Omitted Spouse

What is Disinheritance?

Disinheritance occurs when a person who was set to receive a gift from a decedent is left nothing.

Why Disinherit Someone?

As long as a person is competent and not under another’s influence, they can choose to legally disinherit anyone they want (i.e., a child, parent, spouse etc.) for any reason.

There are many reasons someone may choose to disinherit a person. For example, one may wish to disinherit a former spouse, an estranged family member, or even someone they love dearly but has an abundance of wealth already.

What is an Omitted or Pretermitted Child?

An omitted or pretermitted child is a child born or adopted after execution of all testamentary instruments (this includes wills, codicils, revocable intervivos trusts etc.) and was not provided for in any of those instruments. To illustrate, a testator may write a will, then have a child, and die without changing their will. Cal. Prob. Code § 21620.

Can an Omitted or Pretermitted Child Still Inherit?

If a child is found to be an omitted child, then that child will receive a share of the decedent’s estate equal to what the child would have received if the decedent had died without any testamentary instruments–their intestate share.

Because the decedent did have testamentary instruments, in order for the child to receive their intestate share, other gifts have to be abated or reduced. Cal. Prob. Code § 21623.

There are three exceptions where an omitted child will NOT receive an intestate share:

  1. The decedent’s failure to provide for the child was intentional and appears plainly in the instrument. For example, a decedent’s will states “I currently have no children, but if I were to ever have any children, they are to take nothing from me.”
  2. At the time the testamentary instrument was executed, the decedent had one or more children and transferred by will or by revocable intervivos trust substantially all of the decedent’s estate to the parent of the omitted child. To illustrate, a decedent has a child with her spouse and thereafter creates a will leaving substantially all of her estate to her spouse. After the will is created, decedent has another child with her spouse. Although this second child is an omitted child (born after execution of the will and not provided for in the will), the child will not take an intestate share because the parent, here the spouse, received substantially all of decedent’s estate and decedent and spouse have more than one child together.
  3. The decedent provided for the child by transfer outside of the testamentary instrument with the intention that the transfer provide for the child in lieu of any testamentary provision. For example, decedent names child as the beneficiary of life insurance policy.

Cal. Prob. Code § 21621.

What is an Omitted Spouse?

An omitted spouse is a spouse who married a decedent after the execution of all testamentary instruments by the decedent and is not provided for in any of the instruments. For example, decedent writes a will, then gets married, then dies without adding their spouse to the will.

Can an Omitted Spouse Still Inherit?

If a spouse is considered to be an omitted spouse, they will receive a statutory share of the decedent’s estate equal to what the spouse would have gotten if the decedent died without any testamentary instruments.

Thus, per California law, the spouse would receive the half community property owned by the decedent at death; the half quasi community property owned by the decedent at death; and a share of the separate property of the decedent equal to what the spouse would have gotten if the decedent died with no testamentary instruments. Importantly, this share of separate property is not to exceed half of the value of the separate property in decedent’s estate. Cal. Prob. Code § 21610.

As with an omitted child, for an omitted spouse to take their intestate share, other gifts must be reduced. Cal. Prob. Code § 21612.

An omitted spouse will not take their intestate share if any of the four following exceptions apply:

  1. Decedent’s intent to disinherit spouse is intentional and appears in the testamentary instrument. For example, the decedent’s will states “If I ever get married, my spouse is to take nothing.”
  2. The decedent provides for the spouse by a transfer outside of the testamentary instruments with the intent that the transfer be in lieu of a testamentary provision. For example, decedent purchases an annuity for their spouse in lieu of a testamentary provision.
  3. The omitted spouse signed a waiver (see below).
  4. The omitted spouse was a care custodian of the decedent who was a dependent adult and the marriage began while the spouse provided services to the decedent or within 90 days after those services were last provided; and the decedent died less than 6 months after the marriage began. BUT, if the spouse can prove by clear and convincing evidence that the marriage was not a product of fraud or undue influence, the spouse can take an intestate share.

Cal. Prob. Code § 21611.

What is Required for a Waiver?

A waiver is a voluntary relinquishment of a known right signed before or during marriage. A spouse can waive any and all probate rights. Cal. Prob. Code § 140,141.

In order for a waiver to be valid, the following must be satisfied:

  1. The Waiver must be in writing, signed by the waiving spouse before or during marriage Cal. Prob. Code § 142; and
  2. There was a full disclosure by decedent of their finances; and
  3. There must be independent counsel for the waiving spouse Cal. Prob. Code § 143

If there is no disclosure of finances by the decedent or there is no independent counsel for the waiving spouse, the waiver can still be enforceable if:

  1. The waiving spouse had or should have had knowledge of the testator’s finances, or
  2. The waiver was fair.

Cal. Prob. Code § 144.

How Can I Make Sure I Disinherited Someone?

You should specifically state your intent to disinherit. To prevent inheritance disputes, you should also speak with your family members about disinheritance beforehand as this removes any potential surprises and gives those to be disinherited time to accept and adjust. It also ensures that multiple parties are aware of your wishes to disinherit someone.

Federza Zekiri
Trusts, Estates, & Probate Attorney Ferdeza Zekiri

Attorney Scott Talkov
Talkov Law Attorney & President Scott Talkov

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