Can a Child Born After a Will is Created Inherit?

If you created a will and later sired or adopted a child, or if you are the child of a recently deceased parent or currently living parent who made a will before you were born, you may rightly be wondering how California law treats the child in such a scenario. California law balances the needs of children who are born after a will with honoring the intentions of the deceased, to the extent they can be known, as explained below.

California’s Omitted Child Statute

A child who is born to or adopted by a parent after that parent creates a will is considered an “omitted child” under California law. In general, an omitted child will have the right to receive an inheritance from the parent’s estate, unless one of the three following conditions are met:

• The parent intentionally left the child out of the will. Again, California law will honor a parent’s intention (and parents are free to disinherit any child as they see fit), but the critical step here is that this intention must be apparent in the will or other testamentary instrument, e.g. “I hereby intend to leave no property to my son John Smith.”
• The parent devised “substantially all the estate to the other parent of the omitted child.” If there are one or more children, and the deceased parent nonetheless directed all or nearly all of the estate to the other parent, then the law will presume that the deceased intended to benefit the children through the other parent, rather than making direct distributions to the children.
• The parent provided for the omitted child outside of the will. If the parent provided for the omitted child through a large payment during their lifetime, a life insurance policy, or some other transfer, and there is evidence to indicate this was done in lieu of the will (that evidence can be simply the size of the transfer), this may also suffice in preventing the child from inheriting under the will.

If none of those three conditions apply, then the omitted child should receive his or her intestate share of the parent’s estate, which is what they would have received had there been no will. What a child receives in intestacy is based on whether the deceased had other surviving children, parents, siblings, or a spouse.

Update Your Will Now to Reflect All Children

The best way to bring clarity to the future distribution of your estate is to update your will or other testamentary instrument whenever a child is born or other life change occurs which could affect who might receive a distribution under your will.

For guidance and assistance in all of your estate planning needs, contact Pasadena Estate Planning attorney Christopher Johnson today.