The Omitted Child Statute
California legislators have enacted an “omitted child” statute that details the rights of children who were born after a parent or guardian created a will.
Since the Golden State’s probate courts presume that most parents would accord their children an inheritance, children who were born after the execution of a will are treated as if they were unintentionally omitted from the will. In accordance with California’s omitted child laws, the child—whether an adult or a minor—will still be entitled to an inheritance unless certain requirements are met.
Exceptions to California’s Omitted Child Statutes
California’s omitted child statute preserves children’s right to an inheritance unless any of the following conditions are met:
- The parent intentionally excluded their child from the will.
- The parent bequeathed “substantially all the estate” to their surviving spouse.
- The parent provided for the omitted child outside of the will—perhaps through a significant lifetime gift or the establishment of a revocable living trust.
If none of these conditions apply, the omitted child could petition the probate court to receive an inheritance. The amount and extent of the inheritance would be determined in accordance with the intestate provisions of the California Probate Code and could impact other beneficiaries’ rights.
The Necessity of Revising Your Estate Plan
California’s probate code is complex. If you have recently had a child or are expecting to have a child, you should talk to your estate planning attorney about:
- How your will may need to be structured
- Why you should update your beneficiary designations
- The role of insurance policies in estate planning
Even if you have already established a comprehensive and iron-clad estate plan, its integrity could be threatened by the birth of a child, a marriage, or a divorce.