As a pretermitted spouse or child, you may have legal rights to an estate inheritance. Here’s a simple guide to help you understand the definition of pretermitted, rights, statutes, and the litigation process.
Pretermitted heir simply refers to a person who may have become an heir after a will or trust was created. Here’s the basic definition:
“A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not include the person in the testator’s will. Omission may occur because the testator did not know of the omitted person at the time the will was written.” Wikipedia, June 2019
A pretermitted spouse or child is simply a spouse or child who became the decedent’s spouse or was born to the decedent after the decedent’s will or trust was created. Section 21610 of the California Probate Code outlines the rights of a pretermitted spouse, and Section 21620 outlines the rights of a child.
Here’s an example, 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.”.
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.
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 pretermitted heir entitled to an intestate share of the probate or trust estate. The process should be handled in consultation with a probate lawyer retained by or on behalf of the individual claiming pretermittance.
In this contest, the terms “pretermitted child” and “omitted child” are used interchangeably.
There is a big difference between the terms “pretermitted” and “disinherited.” A disinherited child or spouse 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, i.e., to disinherit them. This is typically expressly stated in a will or trust.
In many cases, a disinherited spouse or child may still be able to pursue legitimate legal claims to seek some share of an inheritance though litigation. This option should be discussed with an experienced probate litigation attorney.
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. In both situations, it makes sense for the individual to contact a probate litigation attorney to discuss their simplest, fastest, efficient and cost-effective course of action.
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 may be most effective to retain a probate litigation attorney familiar with the Los Angeles Superior Court – Probate Division.
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