“Forced Share” Statutes Provides Rights To Disinherited Spouses and Children

Generally speaking, nobody has a legal right to inherit. The law supports every person’s right to decide how the real and personal property you own shall be distributed when you die. A notable exception to this rule is something called a “forced share” or “pretermitted heir” statute that forces someone’s estate to give a share to a spouse or child who claims they were accidentally left out of your trust or estate. 

California Probate Code sections 21610 and 21620 grant rights to surviving spouses and children to claim a share of an estate even when a will, trust, or other estate planning document omits them. The intent of this law was to protect those who were forgotten in your documents, but it can have quite the opposite effect and can harm—not protect—the ones you love. 

Rights of Surviving Spouses

No matter what reason you may have for not providing for your spouse to share in your estate, California laws pertaining to community property rights and the rights of a spouse omitted from a trust or will may override your decision. As one of only a few community-property states, California treats most property acquired during a marriage as community property with each spouse entitled to an equal share of its value. What can be so frustrating about this is that your exclusion of a spouse or child may have been intentional with the understanding that they got other assets or income during their life, or because they were not a part of your life for the last years, or for any other reason. However, unless you have carefully addressed this and understood a spouse’s rights under the law, your plan may end up being divvied up in a way that was not your intent at all. 

Your spouse would be entitled to claim 50% of the community property that is part of your estate. The remaining half of the community property in your estate as well as any separate property you may own at your death may be subject to a claim by your spouse under California Probate Code, section 21610. The statute limits claims against the separate property of the deceased to no more than 50% of its value with a further limitation that the share shall be no more than what a spouse would have received under the state’s intestacy laws.

Defeating a Spousal Claim for a Share of Your Estate

The law provides ways to avoid a claim against your estate by your spouse, including:

• Using language in your will or trust specifically excluding your spouse from receiving a share of your estate. This would be in contrast to simply failing to mention your spouse in the document.
• Make provision in your estate plan for the transfer of assets outside of the estate in lieu of a share of the estate assets.
• A written agreement, such as a prenuptial agreement or postnuptial agreement, is executed by your spouse waiving the right to share in your estate.
• Make sure any marital dissolutions and separations are recorded and trust documents are updated when your relationship changes status

It is best to consult with an experienced estate planning attorney to determine whether your estate plan may be affected by spousal rights under California law. Doing so is particularly important when documents for your estate plan were prepared and executed prior to a marriage that could trigger an omitted spouse claim under Probate Code 21610.

A Disinherited Child Could Get a Share Even If You Intended Otherwise. 

Some individuals could have children that either were not known to be their children or were not raised as their children. Unless you are clear with your intent to exclude them, they have the ability to force the trustee to share the assets of your trust after you die.  

A decision to exclude a child from receiving a share of your estate needs to be discussed with an estate planning attorney to avoid issues similar to those arising in the case of an omitted spouse. Failing to include a child in a will or trust does not automatically exclude them from sharing in your estate.

Children omitted from your estate plan may have the right to share in your estate under California Probate Code, section 21620. The statute gives an omitted child the right to a share of the estate equivalent to what the child would have received had you died without leaving a will or other testamentary instrument.

You can avoid application of Probate Code 21620 through one or more of the following measures:

• Include language in testamentary instruments, such as a will or trust, making it clear that the failure to provide for a share of your estate going to one or more of your children was intentional.
• Leave substantially all of your estate to the surviving parent of the omitted child.
• Provide for the omitted child through a transfer of assets outside of your estate and make it clear that the transfer was in lieu of a share of the estate.

As with provisions of your estate plan pertaining to your spouse, decisions you make about your children should be clearly stated in writing in your estate planning documents.

Learn More About the Rights of Children and Surviving Spouses

The best way to ensure that your estate planning documents accurately reflect your wishes for the management and distribution of your assets is by having them drafted or reviewed by an experienced estate planning attorney at NM Law, APC. Call them today at (949) 253-0000 to schedule a consultation.