Key Takeaways
- A pretermitted heir, also known as an omitted heir, is an individual who was unintentionally left out of a decedent’s will and not given an inheritance.
- Pretermitted children often have the same legal right to an inheritance as any other child, as long as the child was not intentionally excluded from the will.
- Avoid the risk of unintentionally excluding children and heirs by being diligent and proactive in your estate planning.
- If you are a pretermitted child or a pretermitted heir is involved in your estate, then you should contact a skilled estate administration attorney for guidance around your unique case.
Introduction
A pretermitted child is a child who was unintentionally excluded from a will by their parent because the will or trust was created prior to the child’s birth. Pretermitted heirs still have legal protections under most state laws and typically still have a right to receive an inheritance. It’s important to understand the legal rights of a pretermitted child and how they may affect an estate administration process.
If you have been omitted from a will or trust, then you should contact an attorney as soon as possible. This guide provides an introduction to what it means to be a pretermitted child and how the existence of pretermitted children will affect an inheritance or estate administration process.
Definition of Pretermitted Children
A pretermitted child, also known as an omitted child, is any child who is unintentionally or unknowingly left out of a will by their deceased parent without any other provisions left for the child. The key element in defining a pretermitted child is that the testator likely would’ve otherwise included the child had they known about them.
There are several circumstances in which a child may be left out of the will. The child may have been born or adopted after the will was created, or in rarer circumstances, the will creator may not have known about the child at the time of drafting their will. A child is often pretermitted because their parent either did not update their will after welcoming the child into the family or forgot to add them to the will.
Legal Framework
State probate laws often clearly address the concepts of pretermitted heirs. The laws regarding pretermitted heirs will depend on the state where the estate was located.
State Laws Governing Pretermitted Heirs
States often have clear guidelines for how to address cases of pretermitted heirs. These laws are unique depending on the state where the deceased’s estate is located. It’s important to understand the unique nuances between each state and its individual requirements to understand how you may be affected.
California
Under California Probate Code §21620, the state recognizes the right of pretermitted heirs to receive the same inheritance that they would have had the decedent not created a will. In this case, the child should receive an inheritance according to state intestacy laws.
California state intestacy laws provide that all children should receive an equal share of an inheritance after a surviving spouse receives their share. For example, if there is one surviving spouse, three children included in the will, and one child who was pretermitted and left out of the will, then each of the children will receive their intestate share, a one-fourth share of the estate.
However, the following section states that a child will not receive a share of an estate through the will if any of the following are true:
- The decedent intentionally left the child out of the will.
- The decedent passed a portion of the estate to the parent of the omitted child.
- The decedent provided assets for the child through other means outside of the will, such as a trust.
If there are any questions regarding your right to an inheritance, you should consult a probate and estate administration attorney in California.
Texas
In Texas, under the Estates Code Chapter 255, Subchapter B, pretermitted children have a right to the same inheritance as any other child that is included in the will. The share of an inheritance they will receive is often determined by the amount that the other children will receive, either according to state law or the terms of the will.
According to Texas law, the share of an inheritance will depend on the following:
- If an individual creates a will and does not include their other living children, the pretermitted child has a right to receive a share of the estate in line with what they would receive under state intestacy laws, similar to if the decedent died without a will.
- If an individual includes provisions for only some of their children, then the pretermitted child will receive a share of the inheritance aligned with what the other children are entitled to receive.
- If an individual only includes provisions for some children in the will, the pretermitted child will receive an inheritance similar to that of those who are included.
Ultimately, the child should receive a fair share of the inheritance relative to the other children, either according to the provisions of the will or state intestacy law. However, if it is clear that the decedent intended to exclude the child from their will, then the child will not be entitled to an inheritance.
Distinctions Between Pretermitted and Intentionally Disinherited Heirs
It’s crucial to understand that there is a difference between a pretermitted heir and an intentionally disinherited heir. The testator has the right to exclude a legal heir from their will for almost any reason and in most circumstances, regardless of their legal right to an inheritance. If a child is intentionally excluded from a will, they will not have any right to an inheritance from the decedent’s estate.
To disinherit an heir from a will, the testator must clearly state that they would prefer that the child not receive a share of the estate in a disinheritance clause. A child may also be considered to be intentionally disinherited from the will if they were accounted for elsewhere in an estate plan, such as in a trust.
To better understand the distinction between pretermitted and intentionally disinherited heirs and how it may apply to your case, you should consult a probate administration attorney for guidance.
Understanding Inheritance Rights of Pretermitted Children
How Pretermitted Children Affect Estate Distribution
Pretermitted children can affect the estate distribution as they maintain a right to an inheritance if they are unintentionally omitted from the will. In many circumstances, children unintentionally omitted from a will still have the right to receive an inheritance during estate distribution.
The discovery of pretermitted children may have an impact on the inheritance distributions of the other children in line to inherit. For example, if only two children were included in the will and the decedent did not have a surviving spouse, then they would expect to inherit 50% of the estate. However, if a third child enters the fold as a pretermitted heir, all three children will then be entitled to a 33% split of the estate.
A probate and estate administration attorney can offer their guidance to understand the extent to which pretermitted children will affect estate distribution. If inheritance disputes occur in this process, then a probate litigation attorney may be able to help offer multiple tools and strategies that can promote a sustainable resolution.
Legal Challenges and Considerations
Navigating a case involving a pretermitted heir may present the following challenges.
Assessing Intentionality of Omission
Although pretermitted heirs do have legal rights to an inheritance, they can be prevented from receiving an inheritance if it’s proven that they were intentionally omitted from the will. For example, a trust or will may have a provision that specifically accounts for pretermitted children and may prevent the child from inheriting. That said, assessing whether an individual was in fact intentionally excluded from the will can present a challenge.
In cases where an individual has been excluded from a will, it is a good idea to seek evidence that may clarify whether this exclusion was intentional. For example, evidence of intentionality may include communications expressing the intentional exclusion from the will, which may establish a case for disinheriting the heir in question.
If there are concerns or doubts surrounding whether an heir was intentionally or unintentionally excluded from a will and how to address the situation, then it’s best to consult a skilled probate and estate administration attorney as soon as possible.
Provisions Made Outside the Will
Provisions made outside of the will may also demonstrate an intention to exclude an heir from a will. California and Texas state laws clarify that a pretermitted heir must be both excluded from a will and not provided for in other estate planning documents.
For example, if a child is not included in a will, but the decedent did transfer assets to a trust and lists the child as a beneficiary, they may not be considered pretermitted.
Including the child in the trust but not the will may demonstrate intent to exclude the heir from the will.
However, if the child does believe they were unintentionally omitted from the will, they may choose to contest a will to assert their right to receive an inheritance from these assets as well. In this case, consulting a probate litigation attorney will be beneficial to understand your options and how the law may apply to your unique situation.
Impact of Existing Siblings on Pretermitted Rights
If a pretermitted child has existing siblings, this will not impact the rights of the pretermitted child to receive an inheritance, but it will affect the share of that inheritance. Even if existing siblings are included in the will, state laws often clarify that the pretermitted heir will have a right to inherit an equal share of the estate as the other siblings.
Importance of Estate Planning
Proper and thoughtful estate planning can help to alleviate the concerns associated with pretermitted heirs. Clarifying and updating an estate plan can ensure that the
Updating Wills and Documents
Regularly updating your will, trust instrument, and other estate planning documents is crucial for ensuring that the documents continue to reflect your wishes. For example, if you have a child after initially creating your will, then you should be sure to update your estate planning documents to account for the child.
Estate planning professionals typically recommend updating your estate plan at least every three years to ensure that it accurately reflects the wishes of the grantor and accounts for the most current and up-to-date life circumstances.
Utilizing Trusts and Other Tools
Trusts can be beneficial for ensuring that heirs are accounted for in the estate planning process. A trust places the ownership of assets into the hands of a trustee who is responsible for administering these assets to the trust’s beneficiaries.
A trust can be a beneficial estate planning tool because it separates assets from an individual’s estate and can include provisions to account for contingencies. For example, in some cases, a trust creator can give a trustee discretion to add beneficiaries to a trust. This power may be beneficial for a trust creator who wants to ensure that any potential unforeseen issues are addressed, even after their life or after they can no longer control the trust.
Preventing Unintentional Disinheritance
The key to preventing an unintentional disinheritance is to be as proactive as possible in your estate planning. You should develop an estate plan early and work with an experienced estate planning attorney and financial advisors to ensure you consider all of your assets and potential heirs.
After developing this estate plan, you should update your estate planning documents regularly to ensure that they continue to represent your wishes and address your life circumstances. Most experts recommend reviewing your estate plan at least every three years. However, if you remarry, get a divorce, have a child, or experience any other change in family circumstances, you should update your estate plan as soon as possible.
Contact RMO Lawyers For Help With Pretermitted Inheritance Issues
Pretermitted children are those unintentionally left out of a will, often because they were born or adopted after the estate plan was created. In many states, these children still have inheritance rights unless they were expressly excluded. If you or a family member has been omitted from a will, or you’re facing a claim involving a pretermitted heir, it’s important to get clear legal guidance early.
At RMO Lawyers, our probate and trust litigation team represents both heirs and fiduciaries, especially those with pretermitted children disputes. We draw on decades of experience navigating complex family dynamics, protecting client interests, and finding practical solutions inside and outside the courtroom.
Schedule a consultation with RMO Lawyers today to discuss your situation and learn how we can help you protect your rights, and bring clarity to your case.
Glossary
Decedent – A person who has died and left behind assets to be distributed to their heirs.
Pretermitted Child – A child who is born or adopted after a will or trust was created and is not provided for in it. Probate laws often protect the rights of pretermitted children to inherit as though they were included in the estate plan.
Pretermitted Heir – An individual who has a legal right to an inheritance but was unintentionally or unknowingly excluded from a will by the will’s creator.
Omitted Heir – A term often used interchangeably with pretermitted heir, referring to someone who has been unintentionally excluded from a will.
Testator – An individual who creates a will to be followed upon their death, explaining their wishes for the distribution of their assets to relevant beneficiaries.