California Pretermitted Child: Rights of Omitted Children

When a parent creates a will but fails to include a child, California law may give that child an inheritance anyway. These "pretermitted child" statutes protect children who were accidentally left out, typically because they were born after the will was signed.

Understanding these rules matters whether you are updating your estate plan or administering an estate where a child claims pretermitted status.

What Is a Pretermitted Child?

A pretermitted child is a child who:

Was born or adopted after the parent made their will
Is not mentioned in the will
Was not intentionally omitted

California Probate Code 21620-21623 provides these children with an intestate share of the estate, as if the parent had died without a will.

The Purpose of the Law

The law assumes that when a parent makes a will before a child is born, the omission is accidental. The parent simply did not know to include a child who did not yet exist.

Without this protection, children born after a will could receive nothing while older siblings inherit everything. That is probably not what the parent intended.

When the Law Applies

Children Born or Adopted After the Will

The most common scenario: A parent makes a will leaving everything to their existing children. Later, another child is born. The will is never updated. At the parent's death, the after-born child claims pretermitted status.

Example:

John creates a will in 2015 leaving everything to his children Amy and Bob
In 2018, John and his wife have a third child, Claire
John never updates his will
John dies in 2025
Claire is a pretermitted child entitled to her intestate share

Children Believed to Be Dead

A child believed to be dead when the will was made may also qualify if they later appear. This is rare but legally recognized.

Adopted Children

Children adopted after the will was signed receive the same protection as biological children born after the will.

When the Law Does NOT Apply

Intentional Omission

If the will shows the parent intentionally left out the child, pretermitted child laws do not apply.

Ways to Show Intent:

The will states "I intentionally make no provision for any children born after this will"
The will names the child but gives them nothing
The will refers to the child's existence

Example Language:

"I have intentionally made no provision for any children born or adopted after the date of this will."

This single sentence prevents pretermitted child claims.

Provision Outside the Will

If the parent provided for the child outside the will with the intent that it substitute for a testamentary gift, the child is not pretermitted.

Examples:

Life insurance naming the child as beneficiary
Trust established for the child
Property transferred to the child during the parent's lifetime

The key is intent. The parent must have intended the outside provision to be the child's inheritance.

Substantially All to Other Parent

If the parent left substantially all of the estate to the child's other parent, the child is not entitled to a pretermitted share. The law assumes the other parent will provide for the child.

Requirements:

The other parent must survive the testator
"Substantially all" means nearly the entire estate
The other parent must be the biological or adoptive parent of the omitted child

Calculating the Pretermitted Share

If There Are No Other Children

If the pretermitted child is the only child, they receive an intestate share of the estate.

For separate property with a surviving spouse:

Child receives 50% of separate property

For separate property without a surviving spouse:

Child receives 100% of separate property

If There Are Other Children

If other children received gifts under the will, the pretermitted child receives a share equal to what the other children received, in the following order:

From children's shares first: The pretermitted child's share comes from reducing the shares of children who received under the will
Proportionally reduced: Each child's share is reduced proportionally

Example:

Will leaves $300,000 equally to Amy and Bob ($150,000 each)
Claire is pretermitted
Claire receives $100,000 (one-third)
Amy and Bob each receive $100,000 (reduced from $150,000)

From Which Assets

The pretermitted share comes from:

First, from the shares given to other children
If insufficient, from other gifts in the will
Abatement follows Probate Code rules

The Burden of Proof

On the Child

The child claiming pretermitted status must prove:

They are a child of the decedent (biological or adopted)
They were born or adopted after the will was signed
They are not provided for in the will

On the Estate

The estate can defeat the claim by proving:

The omission was intentional
The child was provided for outside the will
Substantially all went to the other parent

Children of a Deceased Child

What if the pretermitted child died before the parent, leaving their own children (the grandchildren)?

Under California's anti-lapse statute, the grandchildren may step into the pretermitted child's shoes and receive the share. This prevents the inheritance from being lost if the child predeceases the parent.

Stepchildren and Pretermitted Status

Stepchildren are NOT entitled to pretermitted child status. Only:

Biological children
Legally adopted children

A stepchild born after the will has no automatic inheritance right unless the stepparent legally adopted them.

Posthumous Children

A child conceived before the parent's death but born afterward (posthumous child) is treated as having been born during the parent's lifetime. They qualify for pretermitted child protection if:

Conceived before the will was made but born after
Conceived after the will was made

Modern reproductive technology creates additional questions about children conceived after death using stored genetic material. These cases require specialized legal analysis.

How to Prevent Pretermitted Child Claims

Include Blanket Language

Add language to your will addressing future children:

"I have made no provision in this will for any child of mine born or adopted after the date of this will. This omission is intentional and not due to accident or mistake."

Name All Existing Children

Even if leaving them nothing, name each child:

"I have the following children: Amy Smith, Bob Smith, and any children born or adopted after the date of this will. I intentionally leave nothing to [child's name]."

Update Your Will After Each Child

The safest approach: Update your will whenever your family changes. Add new children and specify what they receive.

Use a Trust

Living trusts can be amended more easily than wills. Many trust documents include provisions addressing after-born children automatically. Learn more about trust administration.

Contesting Pretermitted Status

As the Estate

If someone claims pretermitted child status, the executor can contest by showing:

Evidence of intentional omission
Documentation of provisions made outside the will
Proof that substantially all went to the other parent

Evidence That May Help

Drafts of the will showing changes
Attorney notes from the estate planning process
Letters or communications about the child
Financial records showing transfers to the child
Insurance beneficiary designations

Timeline and Procedure

When to Raise the Claim

A pretermitted child should assert their claim:

During the probate proceeding
Before final distribution
By filing appropriate objections with the court

What to File

Objection to the proposed distribution
Evidence establishing the claim
Calculation of the claimed share

Interaction with Other Claims

Omitted Spouse

If both an omitted spouse and pretermitted child exist, both claims are resolved. The omitted spouse claim is typically addressed first under Probate Code 21610.

Creditor Claims

Pretermitted child shares are calculated after debts and expenses are paid. The child receives their share of what remains for distribution.

Will Contests

A pretermitted child claim is different from contesting a will. The child is not challenging the will's validity. They are asserting a statutory right that operates despite the will.

Practical Considerations

Family Dynamics

Pretermitted child claims can create family tension. Siblings who expected larger shares may resist. Early communication and legal clarity help manage expectations.

Small Estates

For small estates using simplified procedures, pretermitted child issues still apply. The child's share must be calculated and honored.

Partial Intestacy

When a pretermitted child receives their intestate share, the rest of the will typically remains valid. Only the distribution amounts change.

Frequently Asked Questions

What is a pretermitted child in California?

A pretermitted child is a child born or adopted after a parent made their will, who is not mentioned in the will and was not intentionally omitted. California law gives these children an intestate share of the estate.

Can I disinherit a child in California?

Yes, but you must do so intentionally and clearly. Include language in your will stating you intentionally make no provision for the child. Without clear intent, an omitted child may claim pretermitted status.

What share does a pretermitted child receive?

The share depends on whether other children received gifts under the will. Generally, the pretermitted child receives an equal share with other children, taken proportionally from their gifts.

Does this apply to stepchildren?

No. Only biological and legally adopted children qualify for pretermitted child protection.

How do I prevent a pretermitted child claim?

Include language in your will stating you intentionally make no provision for any children born or adopted after the will's date. Better yet, update your will after each child is born or adopted.

Related Guides

Sources:

"California Probate Code Sections 21620-21623," California Legislative Information, 2024, https://leginfo.legislature.ca.gov/
"California Probate Code Section 21109," California Legislative Information, 2024, https://leginfo.legislature.ca.gov/
"California Probate Code Sections 6400-6455," California Legislative Information, 2024, https://leginfo.legislature.ca.gov/

This guide provides general information about pretermitted children in California. Consult with a California probate attorney for advice specific to your situation.