Suppose your parent died after a battle with terminal illness. Upon reading their will, you find out you were left nothing, while your sibling was left everything. What happens when a parent leaves everything to one child? Can a child be excluded from a will? What are the legal rights of a disinherited child?
It can be a shock to discover your parent excluded you from their will or trust, regardless of whether your exclusion from the document was intentional or unintentional. However, you are not alone in this situation, as probate attorneys deal with cases surrounding the inheritance rights of children every day.
When creating estate plans, it’s common for parents to provide for their assets to be equally distributed among their children, so if one child is disinherited or left less than the others, it often raises questions. For example, it may lead to suspicions that the parents had been unduly influenced.
Continue reading to learn about the factors that can affect the inheritance rights of children. If you have specific questions, remember that an experienced attorney at our firm is available to help.
What Is a Child Entitled to When a Parent Dies?
In California, there is little confusion surrounding the inheritance rights of surviving spouses because of community property laws, which state that all property acquired over the course of a marriage, with some exceptions, belongs equally to both spouses. The inheritance rights of children, on the other hand, aren’t so clear-cut.
When a parent dies, whether a child will be entitled to an inheritance (as well as the specific nature of their inheritance) is determined by whether the parent died with a will or trust, or without a will or trust (i.e., they died intestate).
Learn about how the inheritance rights of children can vary based on this condition from the following sections.
What Are the Inheritance Rights of Children When a Parent Dies With a Will or Trust?
While a parent can use a will or trust to leave behind assets for their children, they generally are under no obligation to leave their children anything. That said, for many parents, the aim of creating an estate plan is to provide for their children after their death.
On the other hand, if a parent had been adamant about not providing for their child via their will or trust, it’s likely they included language within the document to expressly disinherit them.
Regardless of a child’s inheritance status, they generally will have the right to dispute the will or trust of their parent if they believe it to be invalid in any way. Keep in mind that only adult children (with some exceptions) have the right to litigate in court. If a minor has cause to litigate, their parent or guardian usually will need to litigate on their behalf.
When an adult child or someone else brings a successful will or trust contest, estate assets could be distributed in accordance with a prior version of the parent’s will or trust (if one exists), or in accordance with the laws of intestate succession, which are discussed in the following section.
What Are the Inheritance Rights of Children When a Parent Dies Without a Will or Trust?
When a parent dies without a will or trust, children generally will be entitled to an inheritance from their parent’s estate under the laws of intestate succession.
Intestate succession provides for children to inherit a portion of their parent’s sole and separate property, but none of their community property if they died with a surviving spouse.
On the other hand, if their parent died without a surviving spouse, the children will be entitled to both the decedent’s community property and separate property.
The Inheritance Rights of Children Explained
Irrespective of whether the decedent named their children in their trust or will, children are regarded as the decedent’s direct heirs, which affords them certain rights during trust or estate administration. It’s important for children and other heirs to familiarize themselves with their heir rights in the event they ever need to enforce them.
The rights of children during administration generally include:
- The right to be notified about the opening of probate or trust administration
- The right to object to probate
- The right to receive a copy of the will or trust, if one exists
- The right to contest the will or contest the trust
- The right to request information about the will or trust
- The right to refuse their inheritance
If you are struggling to understand your rights as the child of a decedent, know that our experienced attorneys can help provide clarification.
What Are the Legal Rights of a Disinherited Child in California?
If your parent took steps to exclude you from their will or trust, it’s important you take time to understand the legal rights of a disinherited child in California.
Even though being disinherited may hurt, it’s crucial to understand and accept that a parent generally has no obligation to leave an inheritance to their children.
That said, if you believe you were wrongfully disinherited, you are not without recourse. If the document at issue meets one or more of the grounds for contesting a will or trust (e.g., undue influence, fraud, duress, lack of mental capacity), and you can prove it, the court may move to invalidate the document.
What Are the Legal Rights of a Pretermitted Child?
A child who was unintentionally excluded from their parent’s will or trust on account of the parent not having known about their existence when they executed the document is called a pretermitted child or omitted child.
In contrast, a child who was known to their parent but was intentionally left out of their will or trust is considered disinherited.
In terms of inheritance rights, a pretermitted child is treated as though they’re inheriting from their parent’s intestate estate. For example, if the parent of a pretermitted child passed away with no surviving spouse and three living children (one of whom is pretermitted), the pretermitted child generally would be entitled to the portion of the estate they would’ve been entitled to had their parent died intestate — in this case, that would be one-third of the estate — whereas the other children would likely only be entitled to the inheritances they were left in their parent’s will or trust.
It’s important to note that pretermitted children generally take their share of the estate regardless of the contents of their parent’s will or trust. This means that in the example above, the pretermitted child would take one-third of their parent’s estate, even if their parent’s will left the entirety of their estate to their two siblings. With that being said, if it’s unclear what assets a pretermitted child is entitled to from the estate of their parent, it may be necessary for the child (or their surviving parent or guardian if they’re a minor) to bring a property dispute. A probate attorney can help with this process.
Find more information about the inheritance rights of omitted children in California Probate Code section 21620.
What Are the Legal Rights of Stepchildren?
Under most circumstances, stepchildren are not entitled to an inheritance from their stepparent’s estate. However, there is a rare circumstance under which a stepchild may have priority intestacy rights over other heirs.
In the event a stepparent had a predeceased spouse and no children of their own, their stepchildren may be higher in the line of succession than the stepparent’s other family members.
If you have questions about how inheritances are handled in blended families or about your specific inheritance rights as a stepchild, a probate attorney will be able to assist.
What Are the Legal Rights of Financially Dependent Children?
In many families, one spouse is the sole breadwinner of the family. If this spouse is also a parent, their death could create hardships for the children they leave behind, particularly if they’d been financially dependent on them. In such a circumstance, either the surviving spouse or children (if they’re adults) may be able to petition the court for a family allowance to help them make ends meet.
If a family allowance petition is granted, it will provide emergency income to the financially dependent family members of the deceased for a period of time determined by the court.
Talk to an experienced probate attorney to learn more about family allowances and any other rights you may have as a child of a decedent.
What Are the Legal Rights of Adopted Children?
Under California law, adopted children are treated the same as biological children. In other words, if you were adopted by a decedent, you will have the same inheritance rights under intestate succession that your siblings have.
When a parent dies with a will or trust, their adopted children, just like biological children, generally will only be entitled to an inheritance if their parent named them in their will or trust.
That said, a child may still have rights as an adopted child if the decedent hadn’t formally adopted them during their lifetime. The two types of adoption that allow for this are statutory adoption and equitable adoption.
Statutory adoption refers to a situation in which a decedent would have adopted a child but failed to because of legal barriers. If the legal barriers to adoption are successfully proven, the child generally will gain inheritance rights as an adopted heir.
Equitable adoption refers to a situation in which a decedent had made a promise or oral agreement to adopt a child, and intended to carry out the adoption, but failed to do so during their lifetime. This type of adoption can be more difficult to prove, but if it is successfully proven, it could entitle the child to a portion of their parent’s property.
FAQs on the Inheritance Rights of Children
The inheritance rights of children can be complex, so it’s understandable why you’d have additional questions. Feel free to review our FAQs to find more information on the inheritance rights of children.
Can a minor child be left an inheritance by their parent?
In California, a person generally has to be the age of majority (which is 18 years old) to claim an inheritance. That, however, doesn’t mean an inheritance can’t be left to a minor.
If a minor is left an inheritance, someone known as a guardian of the estate generally will need to be appointed to claim, manage and possibly even grow their inheritance until they turn 18 — at which point their inheritance will be released to them. Decedents with minor children often appoint guardians through their will.
It’s important to note that a proposed guardian of the estate will need to be appointed through a formal guardianship proceeding even in instances where a child has a surviving parent who wishes to fill the role.
Does an adult child have a right to live in their parent’s house?
An adult child generally does not have a right to live in their parent’s house unless their parent had explicitly given them that right or they formally inherited the house after their parent’s death.
That said, it often happens that an adult child is residing in their parent’s house during administration. If this is the case, the executor or trustee may ask them to pay rent since the house could’ve been leased to another person for additional income if the child hadn’t been residing in it.
If an adult child is residing in a parent’s home rent-free or is refusing to leave, they can be evicted by the executor or trustee.
Is an estranged child entitled to my inheritance?
Whether a child is estranged usually has nothing to do with whether they’re entitled to an inheritance from their parent’s estate.
To put it simply, if your parent provided for your estranged sibling to receive an inheritance in their will or trust, your sibling generally will be entitled to an inheritance. Their being estranged usually would not affect anything unless you or someone else contests your parent’s will or trust — in which case, it could potentially work against them by raising suspicions about whether your parent had intended to leave them an inheritance.
If your parent died without a will or trust, your sibling will be entitled to the same share of the estate to which you’re entitled under intestate succession. While a will or trust can be contested on certain grounds, intestate succession generally cannot be.
When a parent dies, who gets the house?
It’s impossible to say who will be entitled to a parent’s house after a parent’s death without knowing more details, such as how the home is being disposed of.
For example, if the home has a transfer-on-death deed, it will pass to the new owner listed on the deed.
If your parent died without estate planning documents, the home could be distributed to the surviving spouse and/or children according to the laws of intestate succession. But if your parent dies with a will or trust, their operative estate planning document will determine who receives the house.
Do stepchildren have inheritance rights in California?
Stepchildren generally do not have inheritance rights in California. The exception to this rule would be if stepchildren had been legally adopted, which would mean they have the same inheritance rights as biological children.
As we previously mentioned, stepchildren could have priority intestacy rights over other heirs if their parent predeceased their stepparent, and the stepparent had no children of their own.
Contact Keystone with your questions about the inheritance rights of children.
If you have questions about the rights of children to collect an inheritance, a qualified probate attorney can help. It is especially important that you work with a probate attorney if you’re considering legal action and want a professional opinion about your options.
Keystone is a firm that exclusively focuses on probate law. Our attorneys represent beneficiaries and heirs in all types of probate matters.
Contact us today to set up an appointment. We look forward to speaking with you.
