By Estate Planning and Trust Litigation Attorney, Ted Hankin
As I stated in my last post, my client’s mother had a will when she died; in the will was a disinheritance clause that disinherited my client. In this post I will describe how those clauses are dealt with in California.
In general, a child of a dead parent is entitled to a share of the estate of that deceased parent if the child can prove that the failure of the dead parent to name the child as a beneficiary in that dead parent’s will or trust was due to the dead parent’s mistaken belief that the child was dead when the will or trust was signed or that the child was born after the death of the parent (California Probate Code §21622). In addition, spouses and children who came into the deceased person’s family after the execution of the will or trust are also entitled to receive shares of the estate. The California Probate Code Statutes that address this latter issue are found at California Probate Code §21610 (surviving spouse who married the deceased after the date of execution of the will or trust) and California Probate Code §21620 (child born or adopted after the date of the will or trust).
The exception to the foregoing statutes are express terms in the will or revocable trust that state the intent of the deceased that the child or spouse not take anything from the dead parent or dead spouse’s estate (California Probate Code §§21611, 21621). What this means is that YES you can be disinherited in California, and that is exactly what happened to my client by virtue of the expressed intent in my client’s mother’s will. My client was known to his mother at the time that she wrote her will and she expressly disinherited him.
But the story does not stop here … there is the issue of the residence that he owned with his mother and siblings as a joint tenant with right of survivorship. How the disinheritance clause effected that situation will be the topic of my next post.