Pretermitted Heirs and Estate Litigation

A spouse or child who is omitted from a will may have the legal right to choose an elective share of the estate. California law provides for these family members to ensure that a will does not accidentally exclude them from important property rights. The experienced Los Angeles estate attorneys at Hackard Law focus on estate law. Their skills may protect omitted family members and enforce their legal rights.

What Is a Pretermitted Heir?

A pretermitted heir is one who was omitted from a will. Spouses and children, for example, have the right to inherit even when a will does not specifically mention them, because California-like other states-has adopted statutes that protect them. Section 21610 of the California Probate Code allows for inheritance by a spouse who married the decedent after the execution of a will. Such a spouse is entitled to inherit a portion of the decedent's community property, quasi-community property, and personal property. Section 21620 of the California Probate Code also allows children who were born or adopted after the execution of a will to inherit from an estate. Children are entitled to the amount they would have inherited if the decedent had left no will at all. This portion is called an "elective share."

How to Intentionally Disinherit a Spouse or Child

Of course, some testators do want to disinherit their spouses or children. The California Probate Code provides exceptions to the rules for omitted spouses and children and prevents them from inheriting elective shares.

One of these exceptions is when a testator intentionally disinherits the spouse or child, and makes that intention clear in a will (or other estate planning documents). Simple language that clearly states that the testator has intentionally chosen not to provide for the spouse or child can accomplish this. In such a case, the law will not entitle the omitted person to an elective share of the estate.

Comedian Jerry Lewis was able to successfully disinherit his six children through just such a provision, according to the Daily Mail. The will left his entire estate to his second wife, whom it also named as personal representative. The clear and effective will prevented litigation over the estate and allowed the personal representative to carry out Lewis's wishes without unnecessary expense or delay.

Pretermitted Heirs in the News

Not all children are disinherited with as few complications as Jerry Lewis's. Fame tends to increase the risk of litigation, and estate administration is no exception.

The death of Mickey Rooney caused such vicious fighting among his surviving family members that his remains had to be refrigerated for two weeks while the court determined who had the legal right to dispose of them. His will, which disinherited all of his biological children, was then bitterly disputed in the Los Angeles County Superior Court. The Guardian reports that Rooney signed the will just weeks before his death. His children alleged that was the product of undue influence. They eventually dropped their claims, and the estate-estimated at a value of only $18,000-was administered by an attorney appointed by the probate court.

Larger estates lead to larger fights. Country singer Glen Campbell disinherited three of his eight children in a will executed before his death in 2017. The Daily Mail reports that two of these children claim an ailing Campbell's fourth wife banned them from visiting him. They eventually had to file a lawsuit and obtain a court order to see their father. Now, the fractured family dynamics have moved to the playing field of the probate court, where they will fight over the right to inherit Campbell's estimated $50 million estate.

An Attorney Can Help Pretermitted Heirs Establish Their Legal Rights

A trend emerges in reviewing cases of pretermitted heirs and probate litigation. Testators who were married on multiple occasions have multiple families. In many cases, these families have enmity toward one another, and this increases the odds of legal disputes over the testator's estate. A person with multiple marriages and multiple families can reduce the odds of such claims with effective estate planning. By executing legally binding documents that clearly state one's testamentary intent, disputes are less likely at the time of the estate's administration.

In cases where estate planning documents do not exist, are unclear, or are the product of duress, coercion, or undue influence, omitted spouses and children have the legal right to challenge them. This protects not only their legal rights but also the wishes of the decedent. A will produced by fraud or duress does not accurately reflect a person's true intentions. Family members should address such injustices to protect their loved ones-even after death.

An attorney may help pretermitted heirs determine the validity of a will, whether they have legal grounds for launching a challenge to the will, whether they have sufficient evidence to sustain such a challenge, and what legal tools will most effectively meet the goal of challenging an invalid will. An experienced probate litigator may draw on years of experience to determining which legal tools, which evidence, and which procedures will offer the best chances of protecting an heir's property rights.

Effective Litigation to Protect the Rights of Omitted Spouses and Children

Spouses and children who were omitted from inheriting have legal rights under California law. Hackard Law has decades of experience in effectively challenging improper estate planning documents through probate litigation. Our attorneys help omitted heirs explore their legal options to determine the best methods of asserting their legal rights. You can reach our office at (916) 313-3030 from Santa Clara and (213) 357-5200 from Los Angeles, and online here.