Law Office of John S. Palmer Attorney at Law

Omitted Children, Spouse, or Domestic Partner

Posted Saturday, June 26, 2010 by John S. Palmer

If a Will fails to name or provide for a child of the decedent born or adopted after the Will’s execution, the omitted child must receive a portion of the estate unless it appears from the Will or other evidence that the failure was intentional.

Likewise, if a Will fails to name or provide for a spouse or registered domestic partner whom the decedent married or entered into a domestic partnership with after the Will’s execution; the omitted spouse or domestic partner must receive a portion of the estate unless it appears that the failure was intentional.

In determining if a spouse, domestic partner, or child is named or provided for, individuals identified in a Will by name are considered named whether or not they are identified as a spouse, domestic partner, or child. A reference in a Will to a decedent’s future spouse(s) or domestic partner(s), or words of similar import, constitutes a naming of any future spouse or domestic partner. Likewise, a reference in a Will to the decedent’s future “children”, “descendents”, or “issue” constitutes naming a person who falls into that class. However, a more general reference to a decedent’s “heirs” or “family” does not constitute the naming of a spouse, domestic partner, or child.

An omitted spouse, domestic partner, or child must receive an amount equal to what he or she would have received under the descent and distribution statutes, had the decedent died without a Will, unless the court finds that a smaller share, or no share at all, is more in keeping with the decedent’s intent. In making this determination, the court may consider various factors, including a surviving spouse or domestic partner’s property interests under applicable community property laws; provisions for an omitted child’s parent, or the decedent’s other children, under the Will or otherwise; and provisions that were made for an omitted party outside the decedent’s Will, such as life insurance or other nonprobate assets.

If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.