Many people decide to have their spouse or children inherit from them, but what if you decide to omit one or more heirs, or even have a child that you did not know about?

When you make your estate plan there are certain heirs that are presumed by law to be a part of it, such as children or spouses. On occasion, a natural heir will be left out of the will intentionally, but sometimes it is unintentional. This brings up the question of what happens next and does that omitted person receive a share of the estate.

Two things to consider when this happens are:

An omitted heir:

An heir at the time the estate plan is created who would have inherited under intestate laws (as though there were no estate plan).

A pretermitted heir:

A natural heir that was born, adopted or married to the deceased after the estate plan was signed.

For example, if you have an estate plan and then get married or had a child without updating your will, then those individuals are pretermitted heirs, and they would be included automatically if you died unexpectedly.

In California, the law presumes that you intend to care for your spouse and children, so pretermitted heirs will generally still inherit. If someone did not update their estate plan after marriage or after the birth of a child, that spouse or child will still inherit.

An intentionally omitted spouse will also inherit, unless you have provided for that spouse outside of the will or trust.

An intentionally omitted child could still inherit, if the disinheritance was not done properly. California law requires statements in the trust or will which specifically state the intention to disinherit the child. Naturally, the latter case can cause some ill feeling or conflict, however it is needed to make sure the person’s wish are honored.

When there is a reason for deciding not to provide for a child, it is important to make sure the will or trust is properly drafted to make sure your wishes are honored.