What Happens if You Don’t Include One or More Heirs in Your Estate Plan?

January 16, 2020


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.

If you have questions about omitted or pretermitted heirs in estate planning, please contact
the attorneys at Shoup Legal, A Professional Law Corporation, at 951-445-4114 or
www.ShoupLegal.com for advice.

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