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Understanding Pretermitted Heirs Under California Law: Protecting the Unintentionally Omitted

Posted by Mark Ruiz | Feb 07, 2024 | 0 Comments

Occasionally, in the context of Estate Administration, I have come across situations where children or spouses of the testator were not provided for in a testamentary document such as a Will or a Trust. It so happens that California law recognizes the rights of individuals who may have been unintentionally omitted from a will – they are known as pretermitted heirs. The term "pretermitted" refers to those heirs who were born or adopted after the execution of the will, or those who were inadvertently left out due to oversight. This article aims to shed light on the concept of pretermitted heirs in California and the legal safeguards in place to protect their inheritance rights.

Defining Pretermitted Heirs: Under California Probate Code section 21620, a pretermitted heir is someone who is not mentioned in the will of a decedent but would have been included if the decedent had known about their existence. Pretermitted heirs are typically spouses or children who were born or adopted after the will was executed. The law recognizes the potential for oversight or changes in family circumstances and seeks to ensure that these individuals are not unfairly disinherited.

Legal Protections for Pretermitted Heirs: California law provides certain protections to pretermitted heirs to prevent their unintentional disinheritance. The key provisions include:

  1. Intestate Share: If a pretermitted heir is not mentioned in the will, they are entitled to receive a share of the estate equivalent to what they would have received if the decedent had died intestate (without a will). The law ensures that the pretermitted heir is treated fairly and receives a portion of the estate as if there was no will in place.

  2. Exceptions and Limitations: While the law generally protects pretermitted heirs, there are exceptions and limitations. For instance, if it can be proven that the omission was intentional or if the pretermitted heir received property outside of the will, they may not be entitled to an intestate share.

  3. Charitable Gifts: Pretermitted heirs are entitled to their intestate share even when a portion of the estate is designated for charitable purposes. The law prioritizes the protection of family members over charitable bequests.

  4. Married Pretermitted Spouses: California law takes into account the rights of spouses who were unintentionally omitted from the will. A surviving spouse is entitled to an intestate share unless it can be demonstrated that the omission was intentional.

How to Address Pretermitted Heirs: To address the potential issue of pretermitted heirs, individuals should regularly review and update their wills, especially in the event of significant life changes such as marriage, divorce, or the birth or adoption of children. Keeping the will current helps ensure that all relevant family members are accounted for, reducing the likelihood of unintentional omissions.

Pretermitted heirs in California law are based on the concept of fairness and justice in matters of inheritance. Recognizing the potential for oversight, the legal framework aims to protect the rights of individuals inadvertently left out of a will. Estate planning and regular will reviews are crucial steps in ensuring that the wishes of the deceased are accurately reflected and that pretermitted heirs are duly accounted for in the distribution of the estate.

For a consultation to review or update your Will or Trust please call us at 916-695-9103 (Sacramento Office) or 650-771-0376 (Silicon Valley Office). You can also email us at [email protected] to set up an appointment.


This article is intended for general information purposes only.  Any legal analysis or other content should not be construed as legal or professional advice or substitute for such advice.  No attorney-client or confidential relationship is formed by transmission of information.  If you require legal or professional advice, please contact an attorney or other suitable professional advisor.  The choice of an attorney or other professional is an important decision and should not be based solely upon advertisements and blog

About the Author

Mark Ruiz

Mark A. Ruiz Attorney/Owner Mark  primarily focuses on Business Law, Real Estate Law and Estate Planning.  He holds a Bachelors Degree from Santa Clara University with an emphasis in Business/Marketing and a Law Degree from the University of San Francisco with a Business Law Certificate.  He ...


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