Giving Assets to a Pretermitted Child From a Parent’s Estate

When a parent drafts an estate plan after having one child, but before having a second, the second child may be referred to as a pretermitted child. Pretermitted children are entitled to a portion of their parent’s estate in certain instances under California law. The parent must not have intended to omit the child. Nor must the parent have left a substantial part of the estate to the surviving parent of the children. Furthermore, the parent cannot have made other provisions for the child. This means with the intent that those provisions would serve as the child’s inheritance. If the child is able to meet all of these criteria, he or she stands to receive the share of the estate that would have been received had the parent passed away without a will.

Where the Share of the Pretermitted Child Is Taken From:

Now, the next obvious question is where this share will be taken from in terms of the estate assets. The following is a general overview:

  1. The pretermitted child’s share will first be taken from the parent’s estate. This is the part that is not disposed of under the will or trust. In some cases, there may be no such assets that do not fall under the will or trust.
  2. If there are no such assets as noted above, the share belonging to the pretermitted child will next be taken from the beneficiaries under the parent’s will or trust, in equal proportion to the value that they would otherwise respectively receive. In terms of valuation of these shares, the value will be based on the date of death of the parent.
  3. It is important to note, however, that if the obvious intention of the parent relating to some specific gift or devise of an asset in their will or trust would be defeated by applying the pretermitted child rule to the particular asset, that particular asset can be exempted. The court may order a different apportionment of the assets that is consistent with the deceased parent’s intentions.

Pretermitted children may also believe that they have been fraudulently omitted from the beneficiary designation of an asset that passes outside of their parent’s probate estate. In these cases, our article, “Five Steps to Take With a San Diego Beneficiary Designation Dispute,” provides a helpful overview for what to do next.

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Scott Grossman

Scott Grossman

Attorney

The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307