Family Protection -- Rights of Omitted Surviving Spouse and Children

Question 1

What is a pretermitted child?

Answer 1

One that is not named in the testamentary instrument because the child was not yet born at the time the will or testamentary instrument was written.

In CA – this also covers a child who the testator believed was dead or if the testator was unaware of the child’s birth.

Question 2

When will the pretermitted child receive the intestate share?

Answer 2

Will do so UNLESS:
(1) the will shows the omission was intentional
(2) T provided substitute transfer out of the will OR
(3) T had other children and left estate to parent of omitted child.

Question 3

Will a premarital or pre-birth will survive?

Answer 3

No - automatically fails to provide for surviving spouse or child

Question 4

Omitted spouse from will?

Answer 4

Receives other half of the community property and quasi community property unless will shows omission was intentional, T provided a substitute transfer outside of the will or waiver agreement.