Legal Question in Wills and Trusts in California
I read a case from recent years regarding a California Estate issue. In that case the court discussed how the old law in California regarding an omitted child from a will was California Probate Code section 90 which was stated by the court to read:
"[A] child of the testator is disinherited only when the intent to disinherit the child appears in strong and convincing language on the face of the will. [Citations.] When this intent does not appear the �presumption of law that the failure to name a child or grandchild in a will was unintentional� rules the case."
I see under revised California Probate Code 21622 that the law now states:
�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.�
Am I reading these two statutes correctly when I gather from them that California has changed its laws now to state that the ONLY way a child who was alive at the time of the creation of the will and who was omitted from that will can recover now is if the testator believed the child was dead or was unaware of the birth?
Am I unaware of an additional California Probate Code section that is more reflective of the old section 90 or is 21622 the one and only section regarding omitted children who were living when the will was created? If so I wonder if anyone could tell me WHY the legislature narrowed and altered the principle of section 90 so much. Whereas before ANY child not explicitly mentioned could recover, NOW the ONLY way a child can recover is if their natural parent thought they were DEAD or were unaware of their birth?
2 Answers from Attorneys
There's no explaining why the Legislature does what it does.
You're misreading the law.
In California, a child that is not provided for in a will is called a pretermitted heir. Pursuant to Probate Code section 6570, if a testator fails to provide in his will for a child born or adopted after the execution of the will, the omitted child receives a share in the estate equal in value to that which the child would have received if the testator had died intestate.
Probate Code section 6571 provides that a child does not receive a share of the estate under Probate Code section 6570 if any of the following apply:
(1) The failure to provide for the child was intentional and that intention appears from the will;
(2) At the time of execution, the testator had one or more children and devised substantially all the estate to the other parent of the omitted child.
OR
(3) The testator provided for the child by transfer outside the will and the intention that the transfer be in lieu of the will is shown by statements of the testator or from the amount of transfer or by other evidence.
Probate Code section 21622 must be read in comparison with those sections, not some Probate Code section that has been repealed. Probate Code section 21622 provides for the decedent's erroneous belief that the child was dead, or unawareness of the child's birth.
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