A decedent’s child is his or her heir, along with any surviving spouse/registered domestic partner, and as an heir may — or may not — be entitled to a portion of their deceased parent’s estate.

California law does not require a parent to include a child as a beneficiary under the parent’s estate planning.

However, in the absence of effective estate planning (that is, without executing a valid will, trust and death beneficiary forms) a child may be entitled to a portion of the deceased parent’s estate.

Estate planning documents, of course, may alter that situation. An omitted child may then choose to litigate whether they are entitled to a share of the estate.

A disinheritance clause is included in an attorney drafted will and a trust instrument to show the decedent’s intention to exclude any unintended surviving heirs, including children, from inheriting under the decedent’s will or trust.

A general disinheritance provision is legally sufficient to disinherit any heirs, even though the heirs’ names are not specifically mentioned as being disinherited (Rallo v. O’Brien (2020), 52 CA5th 997).

California law, however, does provide certain protections for surviving children who are omitted in a will or trust, but provides for much stronger protection for those omitted children who were born or adopted after the execution (signing) of the will or trust; unless such instrument was later updated after the child’s birth. That is, after born and adopted omitted children are generally entitled, unless an exception applies, to receive a share in the decedent’s estate (section 21620 of the Probate Code).

This is why people are advised to update their estate planning after the birth or adoption of a child to specifically provide for or disinherit such children.

Children who were already alive when the decedent executed their estate planning documents, however, only receive some minimal protection in California. That narrow protection only applies, “… if the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth, then the child shall receive a share in the estate … (Section 61622 Probate Code).”

Recently, in Carla Montgomery versus Benita Williams, the Fourth Appellate District on Aug. 24, 2024, ruled in a case where the decedent’s will only benefited the decedent’s two children from his two marriages but did not include his four other biological children, including one child, the plaintiff Carla Montgomery, whom the decedent did not even know he had fathered when he signed his will. The court found that Carla had failed to show that her biological father had failed to provide for Carla “solely because …. [the father] was unaware of her birth.”

Even though the will did not include a “Disinheritance Clause,” the court strictly interpreted section 62622.

Looking at the facts, the court held that, “Benjamin’s omission of four known pretermitted children and his naming as beneficiaries only the two children resulting from his marriage shows his intent that only those two children should receive a share of his estate.”

Regardless of whether an omitted child was born before or was born after the decedent executed the testamentary documents, an omitted child will not receive an inheritance if any of the following apply: (1) the decedent’s failure to include the child was intentional and apparent from the testamentary instrument; (2) the decedent left substantially all of their estate to the other parent of the omitted child; and (3) the decedent otherwise provided for the omitted child outside of the estate passing under the testamentary instrument and the decedent’s intention for such other gift(s) to be in lieu of an inheritance under the testamentary instrument is shown by statements of the decedent, evident from the amount of the transfer, or otherwise evident (Section 61621 Probate Code).

The foregoing each requires a facts and circumstances analysis which may lead to litigation.

The foregoing is not legal advice. Anyone confronting the issues addressed should consult with a qualified attorney.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 707-263-3235.