The Omitted Child

Last week, I wrote about what happens when a spouse is omitted from an Estate Plan. I anticipate that the next question on peoples' minds might be, well what about an omitted child?

Perhaps unsurprisingly, the California Probate Code sections dealing with omitted children tracks a path similar to how it treats omitted spouses. Essentially, if the child is adopted or born after the documents have been created, then the child is treated as though the decedent died intestate. In other words, the after born child is entitled to the same share that they would inherit if there were no estate plan documents in place.

The exceptions are similar as well, i.e. if the exclusion was intentional, or the child was provided for outside the documents then the child is not entitled to inherit. However, there is one additional exception that is unique to unprovided for children:

  • If the decedent had one or more children, and devised or otherwise left substantially all of the estate to the other parent of the omitted child.

This exception is meant to apply in the situation where a spouse dies and leaves most of their estate to the other parent, so that the other parent may properly provide for and take care of the children, etc. The exception prevents the omitted child share from interfering with the spouse who is still primarily responsible for minor children, for example. Contrariwise, if the children are adults, the exception allows for the surviving spouse to enjoy the property until they pass away, and then presumably leave the remainder of the estate to the heirs.

Decedent's Erroneous Belief

This is an incredibly important additional classification built into the Cal. Probate Code. It deals with the scenario where the decedent has an erroneous belief regarding the status of the child:

  • If, at the time of the execution of all of the decedent's estate planning documents, the decedent failed to provide for the living child solely because the decedent believed the child to be dead or was unaware of the birth of the child, the child is entitled to a share of the estate that the child would have had if there were no estate planning documents.

The erroneous belief situation thus presents two alternative scenarios. For example, the decedent may have believed that his child died during a freak mountain hiking accident, since it has been a number of years and the child hasn't returned. And then, all of a sudden, the child returns just after the decedent passes away.

Alternatively, the decedent may have unknowingly fathered a love child (presumably this exception applies only to men, since women can't have unknown children, IVF and frozen embryos nonwithstanding), and said love child appears at the reading of the will.

Love child and naturalist survivor child are both entitled to equal shares of the estate as any of the other children, assuming it is the estate of their father that is being distributed.

It is for this reason that many Estate Planning Attorneys will recommend including an explicit disinheritance clause regarding any unknown children or those not explicitly mentioned in the will, etc. The exact language is of course carefully crafted to ensure that after born children that the decedent would want to be provided for will be in the event that the will does not explicitly include them.

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