Omitted Child Rights in California: What a Pretermitted Heir Can Claim
In California, a child left out of a parent’s will or trust is not always out of luck. The law recognizes the “omitted,” or pretermitted, child, and in the right circumstances entitles that child to a share of the estate the plan never mentioned. Here is how omitted-child rights work, and when Mark Malachowski can help you assert or defend one.
How Mark helps omitted children and the estates that face their claims
Pretermitted heir claims
Establishing that a child was omitted from a will or trust under Probate Code sections 21620 to 21623 and claiming an intestate share.
After-born & after-adopted children
Children born or adopted after the estate plan was signed who were never added to it.
Children believed dead or unknown
Section 21622 claims where a parent failed to provide because they thought a child had died, or did not know the child existed.
Defending the estate plan
Representing executors, trustees, and beneficiaries against omitted-child claims that do not meet the statute.
Omission vs. disinheritance
Distinguishing a genuine omission from a deliberate, validly expressed disinheritance that California law allows.
Related trust & will litigation
Undue influence, capacity, and fraud claims that often travel alongside omitted-heir disputes.
What an omitted child needs to know
What is an omitted child in California?
An omitted child, often called a pretermitted heir, is a child who is not provided for in a parent’s will or trust because the plan pre-dated them. Under California Probate Code section 21620, a child born or adopted after the parent executed all of their testamentary instruments, and who is not provided for in any of them, is generally entitled to a share of the estate equal to what the child would have received had the parent died without a will (intestate).
Children a parent didn’t know about or believed had died
Section 21622 addresses a different situation. If a parent failed to provide for a living child solely because the parent believed the child was dead, or was unaware of the child’s birth, that child is generally entitled to the same intestate share. These claims often surface when a previously unknown child, or a child from an earlier relationship, comes forward after a parent’s death.
When an omitted child does not inherit
The right is not automatic. Section 21621 recognizes exceptions: the omission was intentional and that intent appears in the testamentary instruments; the parent left substantially all of the estate to the omitted child’s other parent; or the parent provided for the child by a transfer outside the plan, such as life insurance or a payable-on-death account, intending it to be in lieu of a gift in the will or trust. If an exception applies, the omitted-child share may not.
Omitted child vs. intentional disinheritance
California does not force a parent to leave anything to an adult child. A parent may disinherit a child so long as the intent is clear. The omitted-child statutes protect children the plan genuinely overlooked, usually because they were born or adopted later, or the parent did not know about them. They do not protect children who were deliberately and clearly left out. Reading the documents closely to tell one from the other is often the heart of the case.
How an omitted child claims a share
The claim is raised in probate court, generally by petition. When a share is owed, Probate Code section 21623 sets how it is satisfied out of the other gifts in the plan (abatement). Timing evidence matters, including when each will or trust was signed relative to the child’s birth or adoption, and so does evidence of the parent’s intent. Deadlines are unforgiving: once a trust becomes irrevocable the trustee’s notice under section 16061.7 can start a 120-day clock to contest, so it is important to act quickly.
A clear path from first call to resolution
Case assessment
We review the will, trust, timeline, and the child’s relationship to the decedent to see whether an omitted-heir claim fits.
Strategy & filings
We build the petition or the defense, marshal the evidence of timing and intent, and position the matter for resolution.
Resolution
We negotiate a fair share where possible and litigate in probate court when that serves you best.
Questions clients ask
An omitted (pretermitted) child is a child who is not provided for in a parent’s will or trust, typically because the child was born or adopted after the plan was signed, or the parent did not know the child existed. Under Probate Code section 21620, such a child is generally entitled to an intestate share of the estate.
Sometimes. If the child qualifies as an omitted child under Probate Code sections 21620 to 21622 and none of the statutory exceptions apply, the child can claim a share equal to what they would have received if the parent had died without a will. A child who was intentionally and clearly disinherited generally cannot.
An omitted child was overlooked, and the plan simply never accounted for them. A disinherited child was deliberately left out with the parent’s intent expressed in the documents. California allows a parent to disinherit an adult child, so the distinction usually decides the case.
The core statutes are Probate Code sections 21620 to 21623. Section 21620 creates the share for after-born and after-adopted children, section 21621 lists the exceptions, section 21622 covers a child believed dead or unknown, and section 21623 explains how the share is paid from the estate.
They can apply to both. The statutes speak to a decedent’s “testamentary instruments,” which include revocable living trusts as well as wills, so an omitted child’s claim is not limited to a formal will.
Deadlines depend on the facts, and some are short. When a trust becomes irrevocable, the trustee’s notice under Probate Code section 16061.7 can trigger a 120-day window to contest. Because missing a deadline can end a valid claim, you should speak with a probate litigator promptly.
If the documents clearly show the parent meant to exclude the child, the omitted-child statutes usually do not help, because California permits the disinheritance of adult children. But if the exclusion is ambiguous, or the plan pre-dated the child, there may still be a claim worth reviewing.
Keep exploring
Were you left out of a parent’s will or trust?
Tell Mark what happened. You’ll get a straight read on whether you have an omitted-child claim and a clear next step.