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Forcing a Distribution to a Child Not Named in the Will

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If you are the personal representative in charge of administering a loved one’s estate, it is a mistake to automatically assume that just because a child is not named in the will, he or she has no rights to the estate assets. Sometimes, children are omitted as a result of an oversight. California law provides protection for children who are not intentionally omitted. These children are referred to as a pretermitted child. In some cases, they have a right to receive a portion of their parent’s estate equal to that which they would have received if the parent had died without a will.

Six Questions to Determine Whether a Pretermitted Child Has a Right to Demand a Distribution

How can you tell if a child was intentionally omitted? Ask the following questions:

  1. Did the testator intend not to provide for the child?
  2. Was that intention written into the will?
  3. Did the testator have any children when the will was signed?
  4. If so, did the testator leave most of his assets to the surviving parent of the omitted child?
  5. Did the testator provide for the child in a different way, with the intention that those gifts would constitute his or her inheritance?
  6. If so, can this be proven by statements made by the testator, or based upon the sheer amount of the gifts?

If the answer to all of these questions is “no,” the child may qualify as “pretermitted.” As a result, he or she can enforce a right to receive a share of the parent’s estate.

We hope that you found this article helpful as you attempt to administer the estate of your loved one. If so, we strongly encourage you to share it with your friends and family on Facebook. You never know who you could help avoid a lawsuit due to an incorrect distribution of estate assets!

Scott Grossman

Scott Grossman


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

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