Due to the prevalence of DNA matching on genealogy websites, it will become more and more common to discover formerly unknown relatives. I had a recent matter where a child contacted someone that showed up as a half-sibling on a popular genealogy website. After some tough conversations amongst the family about whether it is possible this person could be a child, the family contacted me to discuss what they could do in the parents’ estate plan to protect against any claim from this person, whether or not they are a biological child. Luckily, there are a few estate planning tools that can address this situation but first an explanation why it is important to have the discussion with an estate planning attorney.
There are several probate code sections that address what is called an “omitted heir” and those sections aim to protect an omitted heir under specific circumstances. See Probate Code Sections 21600 et al. An omitted heir is defined as either a surviving spouse that the decedent married after execution of estate planning documents or a child that was born or adopted after the execution of estate planning documents and that were not provided for in those documents. An omitted heir can be entitled to a share of the decedent’s estate even though they were not identified in the estate planning documents. They do have to show that the omission by the decedent was not intentional (i.e., disinheritance clause), or that they were provided for outside of the estate planning documents (i.e., designated as a beneficiary on retirement or insurance policy), or that the spouse waived any interest (i.e., marital agreement), or that the decedent provided for the omitted child’s surviving parent.
There is one code section – Probate Code Section 21622 – that addresses the situation where the decedent either believed the omitted child was deceased or was not aware of the omitted child. The complication of an unknown child is what the popularity of genealogy websites presents in the estate planning world. A recent case specifically addresses this issue and provides some guidance on what the result may be when an unknown child pops up after the death of a parent. The facts in the Estate of Williams ((2024) 104 Cal.App.5th 374) are that a daughter finds half siblings and a deceased father through a genealogy website. The father had a total of seven children including one unknown child. His estate plan provided for only two of his children (they were the children of his most recent marriage) and did not provide for the other known children and the one unknown child. The unknown child made a claim against the father’s estate as an omitted heir. The court held that the unknown child could not prove that the reason she was not included in the plan was solely because her father was not aware of her and that she was not entitled to a distribution. There was evidence that the father only intended to provide for two of his children. Interestingly, the estate planning documents in the Williams case did not contain a disinheritance clause.
So, what can be done to protect against omitted heirs coming out of the world wide web when someone dies? First, execute estate planning documents. Whether it is a will or a trust, it is important to get something in writing. There are fiduciary requirements of a trustee and an executor to provide notice to all “known and reasonably ascertainable heirs of a decedent.” Heirs are defined as any person entitled to take property of the decedent through intestate succession. It is important to note that heirs can be different from beneficiaries. If is important to have properly executed estate planning documents so that your intent is clear.
Second, make sure to have a conversation with your estate planning attorney of the likelihood of nonmarital children. The attorney can then advise of your options on how to address the issue.
Third, use a disinheritance clause. This is a provision that should be included in your will and trust that addresses your intent to not provide for any known or unknown children or children adopted or born after the execution of the documents. If there is a known child, then it is important to specifically identify them in the disinheritance clause. The estate plan in the Williams case did not have a disinheritance clause and if it did, the claim of the unknown child may have been disposed of prior to the matter reaching the court of appeals.
Fourth, another consideration is if someone donated sperm or an ovum. California has code sections that cover this issue in that a donor who is not a spouse of the parent is not considered a parent for any reason. But not all states have similar provisions, or the donor may not be alive to explain the circumstances to make it clear that they were a donor. To cover this issue, the disinheritance clause could include a provision that specifically disinherits children conceived via the client’s genetic material.
The bottom line is that it is important to execute an estate plan so that you can control this situation from the grave if necessary.