Sean D. Muntz

The deliberate, specific omission of a child from an estate plan often leads to litigation. A disinherited child may challenge an estate plan on various grounds, including that their disinheritance was the result of undue influence by other beneficiaries or an elderly parent’s lack of testamentary capacity to make changes to an established estate plan. But what if a child was omitted from an estate plan created before they were born? And what if a parent did not know of the birth of a child who is omitted from the parent’s estate plan?

In the case of a known omitted child born or adopted after a written estate plan is created, the omitted child is entitled to receive a share of the parent’s estate as though the parent died without an estate plan. Cal. Prob. Code § 21620. All that is needed to prove the entitlement is evidence of the date the last written estate plan was created and the date the child was born. If the former predates the latter, and there is no evidence of an intent in the testamentary instrument or gifts outside the estate in lieu of a testamentary bequest, the child is entitled to an intestate share of the parent’s estate. See id.

In the case of an unknown omitted child, the law requires more and more difficult proof. For an unknown omitted child to receive an intestate share of the parent’s estate, the child must prove the parent did not provide for the child in an estate plan “solely because the decent believed the child to be dead or was unaware of the birth of the child.” Id. at § 21622.

That evidentiary challenge was at issue in the recent case of Estate of Williams, 104 Cal.App.5th 374 (2024).

In Estate of Williams, petitioner Carla Montgomery petitioned to receive a share of the trust of her father, Benjamin Williams. Id. at 376. Carla was born after a brief relationship between her mother and Benjamin in the 1960s. Id. at 377. Shortly after Carla was conceived, Benjamin moved to California. Id. In all, Benjamin fathered seven children – five before he moved to California and two thereafter. Id. He knew of the existence of all except Carla. Id.

In 1999, Benjamin executed a trust, naming two of his children as beneficiaries. Id. His trust did not include a general disinheritance clause. Id.

In 2019, DNA matches and a genealogy website led Carla to meet several half-siblings fathered by Benjamin. Id. She also learned Benjamin had recently passed. Id.

In December 2019, Carla received notice of the existence and intended administration of Benjamin’s trust, and she petitioned to receive a share of the estate pursuant to Cal. Prob. Code § 21622.

At trial, after Carla presented testimony and rested, the court granted a motion for nonsuit. Id.

The trial court found that Carla proved Benjamin was unaware Carla had been born. Id. But the court found, because Benjamin knew of and did not provide for four of his other children, Carla did not prove Benjamin did not provide for Carla in his trust “solely” because he was unaware of her birth. Id.

Carla appealed, arguing the trial court erred in its application of § 21622 and that Rallo v. O’Brian, 52 Cal.App.5th (2020), upon which the trial court relied, is distinguishable because in that case, the decedent’s trust included a general disinheritance clause. Id. at 378.

The Court of Appeal examined Rallo and agreed with its conclusion that the omission of a child born before the creation of a testamentary instrument is presumed to be intentional, and such a child’s recovery from the estate is conditional upon showing the testator was unaware of the child’s birth, and the child was not provided for “solely because of that lack of awareness.” Id. at 378-79, quoting Rallo v. Brian, 52 Cal.App.5th at 1009 (emphasis supplied).

Rallo, the Estate of Williams Court noted, concluded a general disinheritance clause proves an intent to exclude potential children, even those who are unknown, and the testator did not fail to provide for an unknown child solely because the testator was unaware of the child’s birth. Id. at 379, quoting, Rallo, 52 Cal. App.5th at 1010.

Carla argued Rallo was inapplicable because Benjamin’s trust did not contain a general disinheritance clause. Id. The trial court, she claimed, erred by requiring Carla to prove an “additional element” that she would have been included in Benjamin’s trust if he was aware of her birth. Id.

The Court of Appeal disagreed, reasoning that Rallo did not create an “additional element” but is the “only logical interpretation of section 21622’s ‘solely because of’ condition.” Id. The Court concluded that on the record before it, Carla “cannot satisfy her burden of showing that Benjamin solely failed to provide for her because she was unknown to him.” Id.

“Benjamin’s failure to leave anything to his four known children predating the birth of his two children by the woman he married evinces an intent to provide only for those two children as the named beneficiaries.” Id. at 379-80. Finally, the Court rejected Carla’s claim it was “substantially likely” Benjamin would have provided for her if known to him. Id. at 380. “‘[S]ubstantially likely’ is not the relevant standard.” Id. Thus, the trial court’s ruling was affirmed. Id.

Estate of Williams is an example of the daunting burden imposed on an omitted unknown child by Cal. Prob. Code § 21622. Proving the “solely because of” element may not be easy. After all, the child would be tasked with proving the state of mind of a parent who is no longer alive. The challenge for Carla was heightened because other known children were not provided for in Benjamin’s estate. Had Benjamin provided for all his known children equally, perhaps the outcome would have differed.

Sean D. Muntz is the managing partner at RMO LLP.