Family Protection -- Rights of Omitted Surviving Spouse and Children Flashcards
Pretermitted Child?
A pretermitted child is 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 California, this also covers a child who the testator believed was dead or if the testator was unaware of the child’s birth
If the T had no children when will was executed:
the child is generally entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate.
Exceptions to this are as follows:
o All assets to other parent: an after-born child is denied a share of the decedent’s estate if the decedent
gave all or substantially all of his estate to the child’s other parent.
o Intentionally omitted child: if the omission was intentional, the child is not treated as an omitted child.
o Other assets given to child: if the testator provided for the child by transfers outside of the will with
the intent that it would be in place of a gift given by will, the child will not take a portion of the
decedent’s estate.
Omitted Spouse:
If a spouse is omitted from a will, omitted spouse STILL entitled to intestate share UNLESS:
* T intentionally omitted the spouse and made that intent apparent in the will
* T gave the surviving spouse property outside the will in lieu of property delivered through the will OR
* The surviving spouse validly waived their share through a valid writtten agreement such as a pre-marital agreement
When does Intestate succession apply?
Intestate succession is applicable when the decedent dies without a will, or if the will is invalid in whole or in part, or does not make a total distribution. This frequently comes up with omitted
child and omitted spouse problems
Share for surviving spouse?
Community Property: the decedent is married, the spouse will receive one-half of community property and one-half of quasi-community property acquired by the decedent. (The spouse had already owned his or her one-half of the community property.) Thus, this means that the spouse will receive all of the community property and quasi-community property.
**Separate property **
▪ Spouse gets everything if the decedent did not leave issue, parent, brother, sister, or issue of a
deceased brother or sister.
▪ Spouse gets one-half of the separate property if the decedent is survived by one lineal descendant or by a parent or issue of a parent.
▪ Spouse gets one-third of the decedent’s separate property if the decedent is survived by more
than one lineal descendent
Intestate Share for children:
In California, if there is no surviving spouse, the entire estate passes to the decedent’s surviving issue.
If the issue are of the same generation, they take equally (per capita). If they are not of the same generation, they take per capita with representation
Adopted children are children for purposes of intestate succession
