Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, August 13, 2020

General Disinheritance Clause Defeats Omitted Child Claim Under California Probate Code

InheritanceHugh O'Brian, best known for his role as Wyatt Earp in the 1950's ABC Western television series, The Life and Legend of Wyatt Earp, died in September 2016. 

In Rallo v. O'Brian, the Court of Appeal of California, Second Appellate District, Division Three, the court considered claims raised by O'Brian's allegedly omitted children under the California Probate Code. One of the issue before the court was "whether a general disinheritance clause could defeat omitted child claims by unknown children born before the execution of a testamentary instrument."

O'Brian established the Hugh O'Brian Trust in January 1992. O'Brian married his long-time girlfriend Virginia in 2006. The Trust was mended multiple times and Virginia was the trustee of the Trust. 

O'Brian's death spurred inheritance litigation. "Adam, James Venverloh, Donald Etkes, and Kimberly Rallo brought claims seeking to receive an intestate share of O'Brian's estate as his unintentionally omitted children under section 21622 of the California Probate Code."

The trustee demurred to both Adam and Kimberly's separate petitions and Venverloh's jointly filed petition on the ground that the failed to state a claim for relief. "The trial court sustained the demurrers as to Kimberly and Adam with leave to amend, and they both filed separate petitions", while Venverloh and Etkers decided not to pursue their claims. 

Kimberly alleged that she was entitled as an omitted child to a share of O'Brian's estate equal to what she would have received if he had died intestate. Adam made the same argument. 

Omitted children are generally children who are born after the execution of a decedent's testamentary documents and who are not provided for in those documents. 

Kimberly and Adam argued that a general disinheritance clause cannot defeat an omitted claim under the California Probate Code, but can only defeat a claim brought by an unknown child born after the execution of a will or trust. The California appeals Court disagreed. 

There court found that, under California law, " a general disinheritance clause can be used to disinherit known and unknown children, born both before and after the execution of the testamentary documents, if the intent to exclude the children is shown in the documents."

See, General Disinheritance Clause Defeats Omitted Child Claim Under California Probate Code, Probate Stars, August 6, 2020.


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Key to the disposition here was that the settlor expressly disinherited unknown children, if any.

Posted by: Russ Willis | Aug 14, 2020 1:50:35 PM

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