Pretermitted Heir: Definition and How It Works in California

By Eric Ridley, attorney, Ridley Law. Updated September 2026.

A pretermitted heir is a child born or adopted after a will was signed and left out of it. California law presumes the omission was accidental and gives that child an intestate share.

How it works in California

Prob. Code, §§ 21620 through 21623 protect a child the person who made the will didn’t know about, or didn’t think to add, when the will was signed. Under this statute, the omitted child receives a share equal in value to what they would have received had the parent died without a will at all.

The protection has exceptions built in. If the will shows the omission was intentional, or the parent provided for the child outside the will, or nearly everything was already left to the child’s other parent, the pretermitted heir statute doesn’t give the child a share. Absent one of those exceptions, the statute applies automatically, without the child having to prove anything went wrong.

Why it matters

An old will that predates a child’s birth can end up giving that child rights the parent never intended one way or the other. Say a parent signs a will leaving everything to two existing children, then has a third child five years later and never updates the will before dying. The third child can claim a pretermitted heir share of the estate, which reduces what the other two children receive, even though nothing in the will says anything about the youngest child at all.

Common mistakes

Assuming a child born after the will was signed is automatically left out. A will that leaves property to “my children” as a group usually includes later-born children, so the statute matters most when the will names the existing children and stops there. Not updating a will after each birth or adoption, which is what creates the pretermitted heir problem to begin with.

Related terms

• Heir: a person entitled to inherit by intestate succession, which is how a pretermitted heir’s share is measured.
• Intestate succession: the rules used to calculate a pretermitted heir’s share.
• Omitted spouse: the equivalent protection for a spouse married after the will or trust was signed.
• Per stirpes: one way a pretermitted heir’s share might get divided further if that child also has descendants involved in the estate.

Part of the California estate planning glossary.