Omitted or Pretermitted Children Under Wills in California
At a glance
| Will and child covered | Will or death-irrevocable revocable trust; afterborn/adopted or certain existing omitted children (§§ 21600–21601, 21620, 21622). |
|---|---|
| Birth or adoption timing | Born or adopted after all effective instruments executed; separate mistaken-death/unknown-birth route for living child (§§ 21620, 21622). |
| Naming and provision test | No provision in testamentary instrument; § 21620 gives no separate nominal-gift or class-reference test. |
| Intentional omission | Afterborn/adopted share excluded if intentional omission appears from testamentary instruments (§ 21621(a)). |
| Other-parent gifts | Afterborn/adopted share excluded if decedent had children and directed substantially all estate to child's other parent (§ 21621(b)). |
| Outside gifts and advancements | Outside-estate transfer in lieu defeats afterborn/adopted share when intent shown by statements, amount, or other evidence (§ 21621(c)). |
| Baseline statutory share | Value equal to share if decedent had executed no testamentary instrument (§§ 21620, 21622). |
| Effect of gifts to existing children | Separate protection for living child omitted solely through belief of death or unawareness of birth; no children-gifts-only formula (§ 21622). |
| Property source and abatement | First undisposed estate property, then proportional shares from testamentary beneficiaries; protective reallocation allowed (§ 21623). |
| Trust and nonprobate reach | Estate includes probate estate and revocable trust made irrevocable at death; outside-estate transfers can defeat share when in lieu (§§ 21600–21601, 21621(c)). |
Requirements one by one
Covered instruments and children
§ 21600 applies the omitted-child provisions to property passing through a will and to a revocable trust that becomes irrevocable only on the settlor's death. § 21601 defines the estate to include probate assets and property in such a trust. Under § 21620, a child born or adopted after all effective testamentary instruments were executed receives a share if no such instrument provides for the child, subject to § 21621.
§ 21622 separately protects a living child omitted from all effective instruments solely because the decedent believed the child was dead or did not know of the birth. That is a different trigger from the afterborn or adopted route.
Share and exceptions
Both §§ 21620 and 21622 measure the child's share by what the child would have received if the decedent had executed no testamentary instrument. For the § 21620 route, § 21621 removes the share when intentional omission appears from the instruments, when the decedent had children and directed substantially all the estate to the omitted child's other parent, or when an outside-estate transfer was intended in lieu of provision. The last intention may be shown by the decedent's statements, the transfer's amount, or other evidence.
Property used to satisfy the share
§ 21623 takes the share first from estate property not disposed of by will or trust. If that is insufficient, beneficiaries of the decedent's testamentary instruments contribute in proportion to the value they may receive, measured at death. The section permits a different allocation when ordinary apportionment would defeat the decedent's obvious intention for a specific gift or devise.
What trips people up
A revocable trust can fall within this statute's estate definition (§ 21601(b)). An outside-estate benefit does not automatically defeat the afterborn child's share: § 21621(c) requires evidence that the transfer was meant in lieu of provision in the instruments.
Common questions
Must the child have been born after the will? No. Section 21622 has a separate route for a living child omitted because the decedent believed the child dead or was unaware of the birth.
Does a gift to the other parent require that parent to survive and take? Section 21621(b) states that the decedent had children and directed substantially all the estate to the omitted child's other parent; it does not add Florida's separate survival-and-taking words.
Can the court protect a specific gift from proportional reduction? Section 21623(b) allows a different apportionment consistent with the decedent's intention when the ordinary method would defeat an obvious intention for that gift.
Statutes and sources
- Cal. Prob. Code §§ 21600–21601 and 21620–21623. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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