If you have a child who is born or adopted after you create your Will or Trust and you have not provided for them in your Will or Trust, then the child is considered an "omitted child".

An example: You create a Will on January 1, 2018 that states that all of your assets will be left to your parents. On December 1, 2025 your partner gives birth to your son, James. Unless you update your Will accordingly, James is considered an omitted child.

Statutory Share

An omitted child is entitled to a "statutory share" of your estate. California Probate Code Section 21620 states:

Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, the omitted child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

The "statutory share" is what your child would've received if you died "intestate", i.e., without any estate planning documents. This amount will depend on whether you have a spouse and how many children you have at the time of your death.

Exceptions

There are exceptions to the "omitted child" rule, and they are specified in California Probate Code Section 21621:

A child shall not receive a share of the estate under Section 21620 if any of the following is established:

(a) The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child.

(c) The decedent provided for the child by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements of the decedent or from the amount of the transfer or by other evidence. 

Slight Wrinkle

California Probate Code Section 21622 also provides a couple of exceptions to the general rule:

If, at the time of the execution of all of decedent’s testamentary instruments effective at the time of decedent’s death, 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 of the child, the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.

Thus, if you were under the mistaken belief that your child was dead (but was not actually dead) or if you weren't aware of a child you had, he or she would be entitled to a statutory share as well.

It's a good idea to include a provision in your Will or Trust that describes the members of your family to avoid future problems. Additionally, if children are born after you execute your Will or Trust, it's good practice to review your estate planning documents and have them updated.

In California, a probate homestead allows a surviving spouse and children to remain in the deceased spouses home after he or she pass away. It may also have the effect of superseding the deceased spouse's wish to have his or her home be distributed to a non-family member upon death.

This could be invoked by a surviving spouse or children if the deceased spouse willed the home to another person to their exclusion. Although this may ultimately frustrate the deceased spouse's wishes, it may be used by a surviving spouse and minor children to protect the home from creditors, the beneficiaries of the deceased spouse's Will or his or her heirs at law.

Waivers

Like a family allowance, it's possible to obtain a waiver from a spouse of his or her right to request a probate homestead. In addition, provisions in your Will or Trust of your intent to leave the home to someone other than your surviving spouse may help prevent the court from ordering a probate homestead for the benefit of your surviving spouse.

Often, it is best to deal with waivers prior to, or at the beginning stages of marriage, as that is when future spouses are most amenable to such agreements. Once spouses have been married for a while, a request for a waiver may raise suspicions in cause partners to lose faith in one another.

The vast majority of clients we encounter never have concerns about a probate homestead. However, where the strength of a marriage has weakened, or where the parties are contemplating distributing property in a non-traditional way (i.e., leaving property for the benefit of someone other than the surviving spouse or children), it would be wise to consider the possibility of a probate homestead.

A family allowance can be a serious drain on the assets of a decedent's estate. As such, one may want to consider options to soften its potential blow. It's important to note that family allowances are not a major issue for most clients. Some situations more than others may call for considering one of the following options to limit his or her family members' ability to request a family allowance.

Waiving a family allowance

Under California Probate Code Section 141(a)(5), a surviving spouse may waive his or her right to a family allowance. The waiver must be in writing, and the surviving spouse must do so voluntarily and have knowledge of the relevant facts. The precise form of a waiver is beyond the scope of this post; however, more specifics are laid out in California Probate Code Sections 140-147.

Another strategy is to force the surviving spouse or other family members to decide between a gift left to them in the deceased spouse's Will or to request that a court grant a family allowance. Prior to death, the deceased spouse would include provisions in his Will which would cause the beneficiary to forfeit their gift if  a family allowance is requested.

If the gift is substantial, and there's a risk that a judge may deny or only grant a small family allowance, the family members may think twice before requesting a family allowance. There's no statutory support for this approach, and to date, this technique does not appear to be tested in a court of law; however, it may be a worthwhile strategy to consider in situations where a waiver is not possible.

The impact of a family allowance cannot be underestimated, and for certain clients, it is imperative to think through how it might affect their estate plan.

If a deceased spouse's estate is worth less than $20,000, it may be set aside and distributed to the surviving spouse and/or minor children. The relevant law is California Probate Code Sections 6600 to 6615. The purpose is to provide assets to a surving spouse and minor children, even contrary to what a Will may say.

To make use of the small estate set aside law, however, the "net estate" cannot exceed $20,000.

What is the "net estate" and how do you calculate it?

A "net estate" is the value of the assets includable in the estate minus any liens or encumbrances on the assets. For example, if the only asset of the estate is a parcel of land worth $100,000, and it has a mortgage of $90,000, then the net estate would be $10,000.

The estate does not include non-probate assets such as life insurance, retirement accounts, joint tenant accounts, assets subject to a probate homestead, and real estate outside of California.

Because of the relatively small amount of the small estate set aside, it usually doesn't have a significant impact on a deceased spouse's Will. However, a court has discretion in allowing for a small estate set aside.

Thus, if you want to leave your estate to someone other than your surviving spouse or children:

1. Make it clear in the Will
2. Request that the disposition not be affected by the small estate set aside laws, and
3. Clearly indicate assets have been provided for the surviving spouse and/or children outside of the probate estate.