A situation where a child is born to or adopted by a testator after a will or trust has been set up but is not updated to reflect this change can be deemed by courts to have created an omitted heir. Courts typically interpret this omission as accidental or unintentional unless the testator specifically disinherited the would-be heir in the language of the testamentary instrument.
Most states have now adopted a pretermitted heir statute in some form, which generally allow for an omitted child or omitted issue of a deceased child to claim a share of a testator’s estate as though that testator had died intestate.
In California, for example, Probate Code § 21620–21622 provides for omitted heirs born or adopted after a will is executed, including those children whose birth the decedent was unaware of or those thought dead, subject to some exceptions as follows:
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.
(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.
[Last updated in July of 2020 by the Wex Definitions Team]