A Guide to Pretermitted Heirs, Spouses, and Children

There is a common misconception that only millionaires need to create a will. Let’s get something straight – if you have any asset (movable or immovable property), creating a will should be at the top of your priority list. Your will must clearly specify how debts, expenses, and taxes should be paid. It should name beneficiaries to specific properties. Before creating your will, you must make the effort to familiarize yourself with different terms and jargons used in wills and estates. A common term that you will come across when creating your will are pretermitted heirs, spouses, and children.

Pretermitted Heirs, Spouses, and Children Defined

Simply put, a pretermitted heir is someone who may have become an heir after a will was written. Pretermitted heirs are inadvertently left out of a will. After the death of the testator (the creator of the will), a pretermitted heir can approach a court claiming that they were unintentionally omitted from the will. The law was created to safeguard the interests of left-out children or descendants (of the testator). The basis of the law is the presumption that the creator either didn’t know of the person or incorrectly believed that they were dead.

A pretermitted spouse or child is a person who became a descendant or was born to a descendant (of the testator) after the will was created. A person becomes a pretermitted spouse if they were unintentionally omitted from a will. A spouse, however, loses their right to claim their share if the omission was intentional.

A pretermitted child can be a child born (but whose name was not added to the list of beneficiaries) after the will was created. A pretermitted spouse can be a person who married the testator after the will was created.

How Much Do Pretermitted Heirs Inherit?

A pretermitted heir, spouse or child receives the same share that they would have gotten if the testator had passed away without creating a will. This is known as statutory share or intestate share.

The Difference Between Pretermitted and Disinherited

A pretermitted heir is someone who was unintentionally omitted from a will. A disinherited person, on the other hand, is intentionally omitted from a will (though they originally had rights to estate inheritance). People who have been disinherited must seek the help of an experienced probate lawyer in Santa Rosa for exploring their legal options.

Motion to Pretermit Defined

A motion to pretermit is a formal request filed in a court of law asking it to determine whether a spouse or child is a pretermit heir.

Proving that a spouse or child was unintentionally omitted from a will can be a tricky task. The attorney representing the pretermit heir must know the legal framework like the back of their hand. Our team of attorneys at Johnston & Associates Law has helped several clients successfully claim their rightful share in properties left by their loved ones. Our team consists of professionals specializing in probate law. The flawless track record of these professionals speaks for itself. Contact our team of probate lawyers in Santa Rosa and Sonoma County at Johnston & Associates Law, a trusted law Firm in Santa Rosa. Call us at (707) 545-6542.