California Will Drafting – Disinheriting Your Children

Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway.

This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy.

One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally.

As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code.

  • You left your child out of your will intentionally and that intention is apparent from the will in some way,
  • You left property to the parent of the child instead of leaving the property to the child directly, or
  • You provide for the child in some other way outside of your will and the intent to have that be in lieu of being left property in your will is apparent from either your statements or some other kind of evidence.

As always, my posts are meant to neatly summarize some aspect of California law to educate the reader (i.e. you) and to possibly help you avoid a mistake that you might otherwise make due to some incorrect belief about what the law requires. If your situation is not completely addressed by the above, I would encourage you to find a lawyer to discuss your case with.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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