The Guide to Pretermitted Heirs, Spouses, and Children

Executive Summary

• A pretermitted heir, also known as an omitted heir, is someone who was left out of a will despite having a rightful claim to an inheritance under state law.
• Both pretermitted spouses and children have unique rights to a share of an inheritance under California Probate and Texas Estate Codes.
• A pretermitted heir may have to follow specific legal processes to secure their access to their inheritance, including gathering evidence to express their relation to the testator.
• If you are a pretermitted heir to a will, you should contact a probate and estate administration attorney to support you in gaining access to your rightful inheritance.

Introduction

Instances may arise where an individual was omitted from a will despite having a legal right to an inheritance—this person would then be considered a pretermitted heir under the law. The terms omitted heirs and pretermitted heirs are often used interchangeably, indicating the same scenario where someone has been excluded from a will. The most common pretermitted heirs are spouses and children.

As a pretermitted heir in California or Texas, you may have legal rights to an estate inheritance. This simple guide will help you understand the definition of a pretermitted heir, the legal rights of a pretermitted heir, and the litigation process involved so you can access your rightful inheritance.

What is the definition of a pretermitted heir?

A pretermitted heir is a person who may have become an heir after a will or trust was created. A person may be considered a pretermitted heir if they have legal standing to receive a share of an inheritance from an estate but they were ultimately excluded from the will unintentionally.

For example, spouses have specific rights to a deceased spouse’s assets based on state law. If a spouse is left out of a will, they would be considered an omitted or pretermitted heir. This scenario is common when an individual creates a will, marries or remarries a new spouse, and then does not amend the will to include their new spouse before their passing.

Omission of the person from a will can sometimes occur when the testator did not know of the omitted person at the time the will was created. This is common if an individual has a child they did not know about.

What is a pretermitted heir, spouse, or child?

A pretermitted spouse is simply a person who became the decedent’s spouse after the decedent’s will or trust was created. Similarly, a pretermitted child is a person born to the decedent after the decedent created their estate plan. California Probate Codes have specific sections pertaining to both pretermitted spouses and children, while Texas Estate Codes have specific sections pertaining only to omitted children. In California, Probate Code Section 21610 outlines the rights of a pretermitted spouse, and Section 21620 outlines the rights of a child. In Texas, these rights are covered under Estates Codes Chapter 255 Subchapter B.

The following case scenario highlights some of the complexities and potential challenges that could arise, as well as possible legal mechanisms and outcomes.

Mary creates a will and trust outlining her wishes after her death, including distributions to her three children. A year after creating the will and trust, Mary has another child — yet does not update her estate plan. Years later, when Mary passes away, her family discovers that she never added her youngest child. That child is “pretermitted.”

How much does a pretermitted heir, spouse, or child inherit?

How much a pretermitted or omitted spouse inherits depends on the estate value, the assets left behind by the testator, and the number of beneficiaries of the estate. California has laws to protect pretermitted heirs under the assumption that the testator would have wanted to include them in their estate plan. The basic rule is: A pretermitted spouse or child has rights to the estate value they would have received had there been no will. This is called a statutory share or intestate share.

For example, even though Mary’s will designated that her assets should be split three ways among the children included in the will, Mary’s youngest child Anna would still receive one-fourth of the distribution. This is because California’s laws of intestacy provide that surviving children should receive an equal split of the deceased’s assets.

In the case of a pretermitted spouse, they would also receive a designated percentage of the deceased spouse’s estate. This is specifically important in community property states, like California and Texas. Under the rule of a community property state, both spouses are considered equal owners of property, with each side maintaining 50% ownership of the assets. Therefore, upon the death of a spouse, the surviving spouse has a unique claim to the remaining assets.

California

California law includes provisions for both pretermitted spouses and children. Under California Probate Code §21610, a pretermitted spouse has a right to:

• Half of the community property that belonged to the spouse who died
• Half of their quasi-community property
• A share of the decedent’s separate property, but not exceeding half of the separate property

If the decedent has children or other beneficiaries listed in the will, then they will receive shares of the remaining property after the distribution to the spouse. These shares will then depend on the terms of the will to determine which beneficiaries receive which shares.

Pretermitted children also have the right to an inheritance under California law, which states that the child should receive a share from the parent’s estate in equal proportion to the value that they would receive if they were not excluded from the will. For example, the child would receive one-third of the estate if the will included two other children.

Texas

In Texas, the state codes recognize pretermitted children but do not recognize pretermitted spouses. In the event that a spouse is omitted from a will, the state will defer to the will and allow for the distribution of assets in accordance with the testator’s wishes, which can result in a spouse not receiving a share of assets.

However, pretermitted children are covered under Texas Estates Codes Chapter 255 Subchapter B. These codes outline the following criteria for the distribution of assets for pretermitted children:

• If an individual creates a will and does not include their children who are alive at the time, a pretermitted heir will receive a share of the estate in line with what they would receive under state intestacy law if the individual died without a will.
• If the decedent has other children that are covered in the will, the pretermitted child will receive a share of the estate aligned with what the other children in the will are entitled to receive.
• If an individual only includes provisions for some of their children in the will, the pretermitted child will receive an amount aligned with the children who are included.

The codes state that the pretermitted child should receive an amount that is as close as possible to the other children—this means that if other children receive property in some form, the pretermitted child should also receive the same type of assets.

What is a motion to pretermit?

A motion to pretermit operates functionally as a petition to determine entitlement to distribution and refers to the legal action involved in asking a court to determine whether a spouse or child is a pretermitted heir entitled to an intestate share of the probate or trust estate. This motion requests that the court overlook the current estate planning documents to include the pretermitted heir as part of the estate distribution.

A motion to pretermit requires filing a petition with the court and presenting evidence of the relationship between the pretermitted heir and decedent to the court. This motion often includes ensuring you have standing to file, filing the motion with the court, notifying the other parties of the motion, and attending a hearing where the court reviews evidence and testimony.

Filing a motion to pretermit is complex and can vary by jurisdiction, so the process should be handled in consultation with a probate lawyer retained by or on behalf of the individual claiming pretermittance.

What is a pretermitted child vs. an omitted child?

In this context, the terms “pretermitted child” and “omitted child” are used interchangeably. Regardless of the terminology, a child who has been left out of the will and is entitled to an inheritance will be protected under the law.

What is a pretermitted spouse vs. an omitted spouse?

As with children, the terms “pretermitted spouse” and “omitted spouse” are used interchangeably. Spouses in this scenario are entitled to the same inheritance.

What is pretermitted vs. disinherited?

There is a big difference between the terms “pretermitted” and “disinherited.” Whether you were pretermitted or disinherited has crucial implications for your access to an inheritance.

A pretermitted heir is someone who has rights to an inheritance but was unintentionally or unknowingly excluded from a will. However, a disinherited heir is a person who would typically have rights to estate inheritance, yet the decedent specifically stated in a will or trust that they wished to exclude the individual, or in other words, to disinherit them. 

In cases where a testator intends to disinherit an individual from their will, they typically express this sentiment in writing.

In many cases, a disinherited spouse or child may still be able to pursue legitimate legal claims to seek some share of an inheritance through litigation. This option should be discussed with an experienced probate litigation attorney.

How do I prove I’m pretermitted?

In many cases, it’s clear that a child or spouse is pretermitted. In other situations, it must be proven that a child is, in fact, the decedent’s child, and that the decedent was unaware the child existed or was alive.

Some evidence you can use to prove relation to the spouse and that you were pretermitted includes:

• Birth certificates
• Marriage certificates
• DNA tests showing a relationship
• Previous wills that mention you

You may also need to prove that you were not intentionally excluded from the will or disinherited to ensure your inheritance. This evidence may include communications with the testator, testimony from witnesses close to the decedent, or other notes or documentation that prove that you were unintentionally omitted.

In any situation, you should contact a probate litigation attorney to discuss their simplest, fastest, efficient and cost-effective course of action. An attorney can help you understand your options, gather any necessary evidence, and build a case to help you secure your rightful inheritance.

Do I need a probate litigation attorney near me?

It helps to work with a probate lawyer or attorney near you. However, it’s more important to choose an attorney who has experience working with the probate court in the decedent’s county of residence. 

For example, if the decedent passed away while living in Los Angeles, it’s typically most effective to retain a probate litigation attorney familiar with the Los Angeles Superior Court – Probate Division and the local rules of that division. Hiring a probate litigation attorney in the appropriate jurisdiction means that they will be well-versed in the unique state and local laws and that they will have a firm understanding of the necessary legal processes. 

Common Mistakes in Handling Pretermitted Heir Cases

Pretermitted heir cases are often preventable, and, if they do occur, the legal protections make it important to act. The following are a few common mistakes that can occur and either lead to a pretermitted heir case or exacerbate the consequences of the situation.

Failing to Update Estate Plans

Most commonly, the key mistake in pretermitted heir cases falls on the testator for not updating their will appropriately. If a testator remarried multiple times or had a child after writing their will, then there is a higher chance of an heir being pretermitted.

Such a situation emphasizes the importance of proper estate planning. Once the testator creates a will, they should be sure to update it if any significant change to their life occurs, including remarrying or having another child.

It’s also crucial to consult an attorney prior to completing and submitting a will for final approval. An attorney can provide guidance in drafting your will and ensure you consider all potential factors before finalizing your will.

Not understanding legal rights and statutes

It’s common that a pretermitted heir assumes that they do not have a claim to an inheritance once they realize they are omitted from a will. However, this is simply not true. Pretermitted heirs do still have a right to an inheritance under California statutes, so it’s important to take action to exercise your rights.

If you are a pretermitted heir, it’s crucial to consult a lawyer as soon as possible to gain a full understanding of your rights and the legal options available to you.

Not seeking timely legal advice

In an instance where an individual has been pretermitted, one of the most common mistakes is not taking action immediately. If you have been wrongfully omitted from a will, it’s important that you act as soon as possible to stake your claim to a portion of the estate and maintain your access to your inheritance.

If you take too long to seek legal advice, you could risk losing it entirely. Once assets from the estate are fully distributed to the named beneficiaries, your legal options will be limited. As soon as you realize that you have been omitted from a will, you should contact a probate litigation attorney.

Find help with pretermitted heir litigation

A pretermitted heir still often has rights to an inheritance from an estate, even if they are initially excluded from a will. Gaining access to this inheritance often includes gathering evidence and filing a motion to pretermit with the court. It’s important that a pretermitted heir navigates the appropriate legal processes so that they do not lose access to a portion of an estate that is rightfully theirs. Having an attorney by your side to support you in navigating this process is crucial.

At RMO Lawyers, we manage cases around probate litigation every day. From omitted heirs to will contests, our probate administration attorneys handle it all, giving us valuable experience and a deep knowledge of the legal process to help you obtain the best possible outcome. We’ll help you understand your options and take the necessary steps to build a winning strategy to secure your access to your rightful inheritance.