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When a will leaves out a family member

On Behalf of | Aug 23, 2023 | Estate Planning |

A will can help avoid a lot of confusion and frustration after someone has died. However, simply having the document might not be enough to answer all questions. In some cases, a relative is left out of the will and they do not understand why.

It might have been done intentionally, or it could have been an oversight because the testator had a child or got married after executing their will. The law accounts for an omitted child or spouse. When creating or updating a will, it is imperative to understand the details about these laws and make sure that a person’s objectives are clear even if that means they meant to leave certain people out of their will.

What does the law say about omitted family members?

The law covers how a will is assessed if there is an omitted spouse or an omitted child. If the testator got married or entered a domestic partnership after their will was executed and was never updated, the spouse or partner is considered “omitted.” Despite that, they will still get a part of the estate unless it is made clear that leaving them out was done based on the testator’s desire.

There are rules to determine if the person is provided for as part of the estate plan. If they are identified in the document as the spouse or domestic partner, then they have the right to part of the estate. If the will mentions a future spouse or domestic partner in some way, this too is sufficient if they later get married or enter a domestic partnership.

The omitted spouse or domestic partner will get an equal amount of what they would have gotten had the testator died without a will. The court decides what it deems to have been the testator’s intent when it decides how to split their property and considers community property and quasi-community property.

With an omitted child who was born or adopted after the will’s execution, the basic tenets are the same as for a spouse or domestic partner. They still receive a portion of the estate even if they were not named unless it is clear the omission was done purposely.

These issues are not unusual. People might forget to update a will, they might die before they have a chance to update the will or they could intentionally leave a person out of their will.

Prepare for every eventuality with an estate plan

Even people who have been vigilant about having an estate plan in place can forget to update it. Others who want to omit people need to be fully clear about their intentions to avoid confusion and prevent any unnecessary will contests or other disputes.

Estate planning can cover every eventuality if it is written and executed according to the law. For those with substantial assets or people who are of lesser means but still have property they want to pass along, it is wise to have an estate plan. Knowing about the process and how to ensure that the will stands up to scrutiny is key from when it is written and if it needs to be updated.