Omitted Spouse and Omitted Child Claims in California Trusts

1. What It Means to Be an Omitted Spouse or Omitted Child in California

California law protects spouses and children who are unintentionally left out of an estate plan. When a trust or will fails to provide for a surviving spouse or child, the omission may give rise to statutory rights — even if the document appears clear on its face.

An omitted spouse is a surviving spouse who married the decedent after the trust or will was created and was not provided for in that estate plan. An omitted child is generally a child who was born or adopted after execution of the estate plan and was not included.

These claims are not trust contests in the traditional sense. The claimant is not necessarily attacking the validity of the trust or will. Instead, the claimant is asserting statutory rights that can override the document to the extent necessary to prevent unintentional disinheritance.

Practical note: while these rules are often discussed in the will context, omitted heir claims are commonly litigated in trust administrations because revocable trusts operate as will substitutes. If the trust controls the assets, the omitted heir claim is typically asserted in the trust case and funded from the trust estate.

In practical terms, omitted heir cases ask a very specific question: Did the decedent intentionally exclude this spouse or child, or did the omission occur because the estate plan was never updated?

When omission was unintentional, California law can impose a forced share — often reshaping the trust distribution even when the trust itself remains otherwise valid.

2. Statutory Authority Governing Omitted Spouse and Omitted Child Claims

Omitted heir claims are governed primarily by the California Probate Code. These statutes reflect a strong public policy against accidental disinheritance after major life events like marriage, birth, or adoption.

Omitted Spouse — Probate Code §§ 21610–21612

Under these sections, a surviving spouse who married the decedent after execution of the trust or will is entitled to a statutory share unless an exception applies.

Key exceptions include:

• The omission was intentional and appears on the face of the document
• The decedent provided for the spouse outside the trust with the intent it substitute for a trust gift
• The spouse validly waived rights in a premarital or marital agreement

If none of these exceptions apply, the omitted spouse is generally entitled to the share they would have received under California intestate succession laws — often a significant portion of the estate.

Omitted Child — Probate Code §§ 21620–21623

Similar protections apply to omitted children. A child born or adopted after execution of a trust or will may be entitled to a statutory share unless an exception applies.

Key exceptions include:

• The omission was intentional and stated in the document
• The decedent provided for the child by transfer outside the estate plan (as a substitute)
• The decedent had other children and devised substantially all assets to the other parent (fact-dependent)

These statutes do not “punish” disinheritance. They correct estate plans that fail to account for major life events. Understanding which exception applies — and who bears the burden of proof — is often outcome-determinative.

3. Intentional vs. Unintentional Omission — Where These Cases Are Won or Lost

Omitted heir cases rise or fall on intent. Courts are not interested in hindsight fairness. They are focused on whether the decedent actually intended to exclude the spouse or child.

In most cases, intent must appear on the face of the trust or will. Silence is not intent. Boilerplate language is often insufficient. Courts are skeptical of after-the-fact explanations that attempt to infer intent from circumstances alone.

Generic “I intentionally omit anyone not named” language is frequently litigated. Depending on the drafting context and the evidence, it may not be enough to establish that this spouse or child was intentionally excluded as opposed to accidentally omitted.

Common arguments raised to defeat omitted heir claims include:

• “The decedent knew about the spouse or child and still didn’t update the trust”
• “They were provided for informally”
• “The omission must have been intentional”

Courts approach these arguments skeptically. Once the omitted heir proves a qualifying marriage or birth/adoption after execution of the plan and shows omission, the defending side often must prove an exception applies. Discovery is where that burden is tested.

Evidence that frequently decides these cases includes:

• The timing of marriage or birth/adoption relative to the estate plan
• Drafting attorney notes and correspondence
• Statements by the decedent about updating (or forgetting to update) the plan
• Financial transfers made outside the trust
• Prenuptial or postnuptial agreements

When omission is shown to be unintentional, courts impose the statutory share — even when doing so disrupts the existing trust distribution.

4. How Statutory Shares Are Calculated and Funded

Once a spouse or child is determined to be omitted, the next question is not whether they receive a share — it is how much and from where.

California’s omitted heir statutes do not rewrite the entire estate plan. Instead, they carve out a statutory share sufficient to prevent unintentional disinheritance while preserving the plan as much as possible.

Omitted Spouse — Share Calculation

An omitted spouse is generally entitled to the share they would have received under California intestate succession laws. In many cases, that means:

• One-half of the community property (depending on title and characterization), and
• A portion (or all) of the decedent’s separate property, depending on the presence of children or other heirs.

Important: separate from omitted spouse statutes, a surviving spouse may also assert community property confirmation rights depending on characterization and title. In some cases, the “share” dispute is driven more by community/separate property analysis than by omitted spouse statutory allocation.

The precise calculation is fact-driven. It depends on whether assets are community or separate, whether the decedent had children from prior relationships, and how the trust estate is structured.

Omitted Child — Share Calculation

An omitted child is typically entitled to the share they would have received had the decedent died intestate, unless an exception applies. Where there are multiple children, the omitted child’s share is often designed to place them in parity with similarly situated children.

Funding the Statutory Share

Courts generally prefer to fund omitted heir shares in a way that preserves the overall estate plan where possible. In practice, however, funding often requires redistribution that materially impacts other beneficiaries.

Depending on timing and administration posture, funding may involve:

• Reallocating trust assets before final distribution
• Reducing other beneficiaries’ shares proportionally
• Invading residuary distributions to satisfy the statutory share
• Clawing back assets already distributed (where necessary and possible)
• Reopening trust administration to implement the court’s order

Understanding share calculation and funding is critical before filing. These cases often produce winners and losers inside the same family. Expectations must be set early.

5. Common Defenses Raised — and Why They Often Fail

Defending parties rarely concede omitted heir claims. Instead, they rely on recurring defenses that sound persuasive but frequently collapse under scrutiny.

“The Omission Was Intentional”

This is the most common defense — and often the hardest to prove. Intent must typically appear on the face of the trust or will. Silence is not intent. Boilerplate language often fails unless it clearly addresses the spouse or child by category or relationship in a way that satisfies the statute.

“They Were Provided for Outside the Trust”

Outside transfers can defeat an omitted heir claim only if the evidence shows the decedent intended the transfer to substitute for a testamentary gift. Casual support, joint expenses, or undocumented assistance rarely qualifies. Courts typically look for significant transfers, timing, and proof of substitutionary intent.

“They Waived Their Rights”

Waiver defenses often rely on prenuptial or postnuptial agreements. To be effective, the agreement must be valid, enforceable, and contain a clear waiver of inheritance rights. Many agreements fail due to lack of independent counsel, inadequate disclosure, or ambiguous language.

“They Weren’t Really a Spouse (or the Marriage Wasn’t Valid)”

In spouse cases, defending parties sometimes attack standing by disputing marital status. That can include claims of invalid marriage, unresolved divorce issues, or separation-based arguments. These issues are fact-driven and often require records, sworn testimony, and careful timeline analysis.

“They Weren’t a Legal Child”

In child cases, defending parties sometimes dispute whether the claimant qualifies as a legal child for omitted heir purposes. Paternity, adoption status, and related parentage issues can become threshold disputes. When raised, they must be proved with documents — not assumptions.

“They Had a Bad Relationship”

Personal conflict is irrelevant. Courts do not deny statutory protections based on strained relationships. Omitted heir statutes exist precisely because life changes and estate plans often lag behind.

“The Trust Was Recently Updated”

A recent update does not defeat an omitted heir claim unless the update occurred after the marriage or birth/adoption and clearly addressed the spouse or child. Updating unrelated provisions does not establish intent to omit.

6. Discovery: How Omitted Heir Cases Are Proven

Discovery is often decisive in omitted spouse and omitted child litigation. These cases turn on intent, timing, waiver, and substitution — all of which are provable through documents and testimony.

Key Documents That Matter

Written discovery and subpoenas are typically used to obtain:

• Drafting attorney notes, emails, and intake forms
• Prior versions of the estate plan and amendment history
• Prenuptial and postnuptial agreements (and supporting disclosure documents)
• Financial records showing transfers outside the trust
• Communications referencing updates or failure to update the estate plan
• Account statements, beneficiary designations, and title/characterization evidence

Drafting attorney files are particularly important. They often show whether the decedent discussed updating the plan, intended to do so, or simply never completed an update. Those facts frequently determine whether an exception applies.

Depositions That Shape the Case

Depositions lock in explanations and expose inconsistencies between claimed intent and actual conduct. Key depositions often include:

• The drafting attorney
• The surviving spouse or the parent/guardian asserting the child’s claim
• Trust beneficiaries opposing the claim
• Financial advisors or accountants involved in outside transfers

Once the omitted heir establishes a qualifying marriage or birth/adoption and omission from the estate plan, the defending party often must prove an exception. Discovery is where that proof is tested — and where many defenses fail.

7. What Happens If You Win — and If You Lose

Omitted spouse and omitted child cases produce concrete outcomes. These are not symbolic rulings. They change who receives trust assets and in what amounts.

If the Omitted Spouse or Child Prevails

When the court finds an omission was unintentional and no statutory exception applies, the court orders a statutory share. That typically results in:

• Reallocation of trust assets to fund the omitted heir’s share
• Reduction of other beneficiaries’ interests
• Possible clawback of assets already distributed
• Reopening trust administration
• Court supervision of distribution in contested cases

Importantly, the trust itself often remains valid. The court does not rewrite the entire trust. It imposes the statutory share to correct the omission.

If the Omitted Heir Claim Fails

If the defending party proves an exception applies — intentional omission, valid waiver, or substitutionary provision — the omitted spouse or child receives nothing beyond what the trust already provides.

• The existing trust distribution scheme remains intact
• Beneficiaries gain legal insulation
• Recovery opportunities largely disappear
• Appeals become the only remaining leverage (and most appeals lose)

Because the consequences are severe, omitted heir cases require careful case selection and early evidence analysis.

8. Real-World Case Patterns in Omitted Spouse and Omitted Child Litigation

Case Pattern 1: Late-life marriage, no trust update

A trust is created years before marriage, naming children or other relatives as beneficiaries. Later in life, the settlor marries but never updates the trust. After death, the surviving spouse discovers they are excluded. Defending beneficiaries argue the omission must have been intentional because the decedent “knew about the marriage.” Discovery reveals no clear intentional omission language, no waiver, and no outside provision intended as a substitute.

Typical outcome pattern: courts impose the omitted spouse’s statutory share, materially reducing distributions to prior beneficiaries.

Case Pattern 2: Child born after trust execution

A trust is created when the settlor has no children (or fewer children). A child is later born or adopted, but the trust is never updated. Defending parties claim the child was “taken care of informally.” Financial records show ordinary parental support, not a substitutionary transfer with intent to replace a trust gift.

Typical outcome pattern: courts treat the omission as unintentional and award the omitted child an intestate-equivalent share, often aligning the child with similarly situated children.

Case Pattern 3: Prenuptial agreement raised too late (or not enforceable)

A surviving spouse brings an omitted spouse claim. Defending beneficiaries rely on a prenuptial agreement signed years earlier. On review, the agreement contains vague language, lacks full disclosure, or fails to clearly waive inheritance rights.

Typical outcome pattern: the waiver defense fails, and the omitted spouse receives a statutory share despite the existence of an agreement.

9. What Lawyers Commonly Miss (and Why That Costs Cases)

Omitted heir cases are frequently mishandled by non-specialist attorneys. The mistakes are predictable — and costly.

• Treating omitted heir claims as ordinary trust contests
• Failing to analyze which party bears the burden of proof and when it shifts
• Overlooking drafting attorney files and intake notes
• Accepting boilerplate “intentional omission” language at face value
• Failing to scrutinize premarital or marital agreements for enforceability
• Ignoring how statutory shares will actually be funded
• Underestimating the disruption to existing beneficiaries and settlement leverage dynamics

Omitted spouse and omitted child litigation is a statutory specialty. It requires precision, early discovery, and a clear understanding of how California courts correct unintentional disinheritance.

10. Statute of Limitations and Procedural Traps

Omitted spouse and omitted child claims are subject to strict procedural rules. Timing mistakes can permanently bar otherwise valid claims.

Common procedural traps include:

• Failing to assert omitted heir rights before trust distributions are finalized
• Allowing trustees to complete administration without objection
• Missing deadlines tied to trust accountings and related notice procedures
• Confusing omitted heir claims with other probate/trust contest timing rules

Trustees and defending beneficiaries sometimes accelerate administration or push early distributions to create procedural barriers. Early action preserves leverage, preserves evidence, and preserves recoverability.

Do not rely on this page for deadlines. Always speak with your lawyer about the deadline by which you must assert your omitted heir rights. Failure to act in time can result in claims being barred.

11. Why Omitted Heir Cases Are Rarely Done Right

Omitted spouse and omitted child cases are deceptively complex. On the surface, they appear straightforward: a spouse or child was left out. In practice, these cases blend statutory interpretation, trust administration, discovery strategy, and evidentiary burden-shifting.

• They are treated as emotional family disputes rather than statutory enforcement actions
• Discovery is delayed or underutilized
• Drafting attorney files are not pursued early
• Burden-shifting frameworks are misunderstood
• Share funding consequences are not modeled before settlement discussions

When statutory shares are imposed, long-standing expectations collapse. That reality drives resistance and requires experienced litigation strategy to overcome.

12. How ALDAV Litigates Omitted Spouse and Omitted Child Claims

Albertson & Davidson, LLP litigates omitted heir cases as statutory enforcement matters, not generic probate disputes.

Our approach emphasizes:

• Early analysis of statutory eligibility and exceptions
• Immediate preservation of drafting attorney files and prior estate plans
• Focused discovery designed to prove omission was unintentional
• Strategic burden-shifting to force defending parties to prove exceptions
• Clear modeling of statutory share funding before settlement discussions
• Trial-ready case development from the outset

Omitted heir claims often overlap with disputes over accountings, distributions, and trustee misconduct. When those issues are present, related enforcement remedies may include trust accounting objections and trustee surcharge, trustee removal or suspension, and (in appropriate cases) trust amendment challenges where validity is in dispute.

We do not assume omission was intentional. We require proof.

Our goal is to restore the share the decedent never intended to deny — while positioning the case for efficient resolution based on evidence, not narrative.

13. Who Should Contact Us — and Who Should Not

You should contact us if:

• You married the decedent after a trust or will was created
• You are a child born or adopted after execution of the estate plan
• You were completely or substantially excluded from the trust
• There is no clear language showing intentional omission
• You suspect the estate plan was never updated after a major life event

You should not contact us if:

• You are only seeking estate planning or document drafting
• You are shopping solely on price
• You are looking for informal mediation without enforcement
• The omission was clearly intentional and documented

These are litigation matters. They require early analysis, disciplined discovery, and a willingness to enforce statutory rights.

Contact: 858-209-2309; [email protected]