What Is a Pretermitted Child (And How to Protect Your Estate Plan)?

A pretermitted child is a child that was accidentally left out of a parent’s will, or their trust. These children have a right to claim part of the estate, even if the valid estate plan leaves them out of it by accident. This often comes up in the case of divorce or more complicated family structures. Preventing this issue from the beginning can help ensure your wishes are fully carried out after you pass. It can also prevent expensive disputes between family members later.

At Filippi Law Firm, P.C., our California estate planning attorneys are ready to help. We help you avoid the problem of the pretermitted child and anyone claiming part of your estate if you intended them not to. 

How California Defines a Pretermitted Child

A child may be considered “pretermitted” if:

• The child was born or adopted after the parent created their will or trust, and
• The estate plan does not intentionally exclude the child or provide for them in another way.

California law assumes that most parents would want to provide for all of their children. When a child is omitted simply because the estate plan was never updated, the law steps in to correct the oversight.

A pretermitted child can be:

• A biological child
• An adopted child
• A child conceived before death but born afterward
• In some cases, a child the parent did not know existed

Stepchildren are not automatically included unless legally adopted.

What a Pretermitted Child Is Entitled To

If a court determines that a child was unintentionally omitted, the child may receive the same share they would have inherited if the parent had died without a will (intestate). This can significantly alter how the estate is distributed.

For example, if a parent leaves everything to a spouse but later has another child and never updates their estate plan, that child may be entitled to a portion of the estate, even if the parent verbally expressed other wishes.

When a Child Is Not Considered Pretermitted

California law provides several exceptions. A child is not considered pretermitted if:

• The omission was intentional
• The parent provided for the child outside the estate plan
• The parent left most of the estate to the child’s other parent
• The child was already provided for in the estate plan

All of these exceptions are very fact-specific. For example, if the omission is intentional, the testator should make very clear in the estate plan that the particular child is not to inherit. If there are other ways that the child is supported, the estate plan should spell that out, and then specifically state that the child will not inherit through the estate plan. Your attorney can help make everything clear and effective. 

Common Situations That Lead to Pretermitted Child Claims

Pretermitted child cases frequently stem from:

• Birth or adoption of a new child after the estate plan was created
• Remarriage, especially when a parent creates a will before blending families
• Estranged children the parent later reconnects with
• Unintentional omissions caused by outdated documents
• Failure to update beneficiary designations on retirement accounts or life insurance

Why Staying Proactive Matters

A single oversight, such as failing to update your will after the birth of a child, can reshape your entire estate plan. Pretermitted child claims often lead to:

• Delays in probate
• Increased legal fees
• Strained family relationships
• Court-ordered distributions that differ from your intentions

Regularly reviewing and updating your estate plan is the most effective way to ensure your wishes are honored and your loved ones are protected.

How To Protect Your Estate Plan from the Problem of the Pretermitted Child

The law will potentially give a child that was forgotten an opportunity to get part of the estate. However, it may not be the part you want, or perhaps you specifically intended to exclude someone from the will. Either way, proactive preplanning takes care of these issues and helps to prevent litigation down the road. 

Let the dedicated estate planning attorneys at Filippi Law Firm, P.C. review your case. Contact us today for a consultation.