Omitted Heirs in California Estate Planning: What You Need to Know
California law offers protections for individuals who may have been unintentionally excluded from a will or trust. These individuals, often referred to as “omitted heirs,” can still receive a share of the decedent’s estate even if they are not explicitly mentioned. California Probate Code Sections 21600 – 21630 outline specific protections for omitted spouses and children.
What is an Omitted Spouse?
An omitted spouse is a surviving spouse who married the decedent after the decedent created their will or trust. Here’s an example: John, at age 30, drafts a will leaving his entire estate to his best friend, Mike. Three years later, John marries Jane but forgets to update his will. When John passes away, his will still names Mike as the sole beneficiary. In this case, Jane qualifies as an omitted spouse under California law.
Under Probate Code §21610, an omitted spouse is generally entitled to a share of the estate that may include:
- One-half of the decedent’s community property
- One-half of the decedent’s quasi-community property
- A portion of the decedent’s separate property, potentially up to half
However, Jane would not qualify as an omitted spouse if:
- The omission was intentional, as stated in the estate documents
- The decedent provided for Jane outside the estate plan
- Jane waived her rights in a valid agreement
- Jane was a care custodian and married John for less than six months
Omitted Children: How Does It Work?
Similar rules apply to omitted children, with some additional considerations. An omitted child is typically one born after the execution of a will or trust. The child may be entitled to a share equal to what they would have received under intestate succession, unless:
- The omission was intentional and documented
- Most of the estate was directed to the other parent
- The child was provided for outside of the estate plan
Moreover, protections extend to children born before the estate plan was executed if the decedent was unaware of the child’s existence or mistakenly believed the child was deceased.
The Importance of Updating Your Estate Plan
The rules protecting omitted heirs emphasize the need for clear, up-to-date estate planning documents. Without regularly reviewing and updating your plan, unintended consequences can arise. To ensure your estate reflects your true intentions, consult with an experienced California estate planning attorney.
For personalized guidance, contact Naimish & Lewis, APC. Our attorneys can help you create a comprehensive and legally sound estate plan.
