As a child or spouse, you have certain rights when it comes to inheritance of the property or assets of a parent. For any number of reasons, a testator (author of the will) may attempt to disinherit a child or spouse by omitting them from a will or trust. Common reasons include:
- lack of any kind of relationship
- the heir has sufficient resources or assets
- parent has provided for child by other means
- the heir refused to help or assist the testator in a time of need
- the heir is considered too irresponsible
- testator is at odds with the heir’s life choices or lifestyle
- testator has never updated their estate plan
- If this happens to you, there are some things to understand, as well as legal remedies available to you.
If You are Omitted or Disinherited From Your Spouse’s’ Will
You are a pretermitted spouse if you were not provided for in a will that was prepared before you married the testator. In this case, you are entitled to one-half of the community property (or more depending on various other factors such as children), one-half of the quasi-community property, and a share of the decedent’s separate property that is equal in value to the share you would have received if the decedent had died intestate. You are not entitled to more than half of the value of the separate property in the estate.
If you were married at the time the will was created, you do have the right to waive the will and take your elective share. You are entitled one-half of the community property unless you signed a valid prenuptial agreement that limited your right to the assets.
Please note that California law provides that you can be disinherited if the testator left specific language in the will intending to disinherit you. You might also be disinherited by way of a ‘No-Contest Clause’ so that if you challenge what you inherited, you lose your rights to that asset. You may also be disinherited if the decedent provided for you by a transfer outside of the estate if done in lieu of leaving you anything in the will evidenced by statements made by the deceased spouse, the amount of the transfer of assets or any other evidence.
The Pretermitted and Disinherited Child
A pretermitted child is born after the will was created. A pretermitted child is entitled to a statutory share that is equivalent to the child’s intestate share.
If you were living at the time the will was created and were omitted, you are entitled to the intestate share as well.
You may still be disinherited, though, in the same manner a spouse may be: by specific disinheriting language in the will. Also, if you were provided for by way of a transfer made outside the estate and the decedent intended you to be provided for in this manner and the amount of the transfer was adequate.
Legal Remedies for Being Left Out of A Will
Besides hiring a probate or trusts and estate lawyer to assist you in taking your elective or intestate share if you were omitted or pretermitted if circumstances are in your favor, there are other ways to challenge a will.
The Disinheritance Language was too General
General language disinheriting you such as “I disinherit my heirs or anyone else not mentioned” may be too general to have any legal effect.
Lack of Due Execution
The will may not have been properly signed or attested to or if holographic, there are portions in someone else’s handwriting.
Undue Influence, Fraud or Duress
Challenge the will by asserting the testator was unduly influenced, usually by someone in a position of trust, in drafting the will so as to disinherit you and profit the influencing agent. You can also show that certain misrepresentations were made that induced the making of the will
Lack of Testamentary Capacity
If the testator suffered from a mental disorder at the time the will was created and experienced hallucinations or heard voices, then the will may be invalidated. Also, evidence that the testator suffered from dementia or did not understand the nature and situation of his/her property or the relationship to those whose interests were affected by the will may be grounds to invalidate the will as well.
Contacting an Inheritance Disputes Attorney
If you have any questions regarding the validity of a will that you have been omitted from, please contact The Law Offices of Omar Gastelum and Associates. Our team of experienced estate planning attorneys are happy to assist you.