Estate plan updates are important if you want your life’s work to be distributed as you truly wish. Failing to update your estate planning documents could result in some heirs being omitted. The legal term for that occurrence is omitted (or pretermitted) heirs. In that case, these heirs could be receiving less than you wanted them to receive. Don’t leave anything to chance when it comes to making provisions for those you care. Remember that the Law Offices of Irina Sherbak invite you to book your free 30-minute case review with an experienced San Diego trust attorney who can address your concerns and provide you the necessary guidance.

The following text is for information purposes only and does not constitute an attorney/client relationship. We’d love to give you personalized information in your case consult, feel free to book a complimentary consultation today.

Who are omitted heirs?

Sometimes a person writes a will or sets up a trust before a major life event, such as getting married or welcoming a child. If they so nor update their will and/or trust provisions, their spouse or child gets omitted from their estate plan, even though the deceased person probably did not intend for this to happen.

The law protects heirs who were unintentionally omitted from an estate plan. The rationale is that but for the fact that the omitted spouse/child got married/born after the will or trust were set up, they would have been provided for.

In California, an omitted spouse can be a spouse or a registered domestic partner. An omitted child is a natural born or adopted child of the deceased person, or in specified cases, a stepchild or foster child.

When does an heir qualify as omitted?

An omitted heir is an heir who got accidentally disinherited because a testamentary instrument or testamentary instruments (will and/or trust) were executed before marriage/birth. The heir must show their eligibility to the satisfaction of the court.

Omitted children should generally prove that they were omitted because the deceased parent was unaware of their existence or because the deceased believed the child had been deceased.

There are situations when a spouse or child do not qualify as an omitted heir, such as:

• If the will or trust show the decedent’s intention to purposefully disinherit the spouse/child
• If the decedent made provisions for the spouse or child outside the will/trust (for example, life insurance, pay on death accounts, substantial gifts during the decedent’s lifetime)
• If the decedent left substantially all of their estate to the omitted child’s other parent
• If the surviving spouse signed an agreement waiving his or her right to the decedent’s estate (for example, a premarital agreement)

How much do omitted heirs inherit?

The general principle is that the omitted heir receives the amount they would have inherited if the decedent had died intestate (without a will or trust).

How can you prevent disinherited heirs from challenging their share?

Obviously, there is important difference between omitted and disinherited heirs. Disinherited heirs are omitted on purpose, unlike omitted (pretermitted) heirs who are omitted by accident. You as the testator of the will and/or settlor of the trust want to make sure your wishes are carried out.

We have already written about the steps you should take to prevent disgruntled relatives from contesting your will. Basically, you want to demonstrate your testamentary capacity at the time the testamentary instrument is executed, seek assistance from a San Diego trust attorney, preferably provide an explanation for your wishes, and include a no-contest clause.

What is to be learned?

The lesson to be learned is that it is vital you update your estate plan after major life events and that you revisit it on a regular basis. Not only do our lives change, but so do the laws and regulations regarding estate distribution. If you want your estate to be distributed according to your wishes and with as little administrative costs as possible, make an estate plan and update it as necessary with the help of a knowledgeable and experienced San Diego trust attorney. The Law Offices of Irina Sherbak are here for you. We invite you to schedule your no-cost 30-minute consultation with a seasoned estate planning attorney today!