If not named specifically in a will, can children of the deceased protest for inheritance?

2 answers | Last updated: Oct 27, 2011
Zena1374 asked...

A mother died 14 years ago. She had no will and it was assumed that everything automatically went to her husband. He then died and in his will leaves everything to his youngest daughter. There are five children. Do the other children have any rights to protest his will?

Expert Answers

Liza Hanks is the founder and owner of FamilyWorks Estate Planning, a law firm with offices in Campbell and Los Altos, California, and the author of The Busy Family's Guide to Estate Planning (Nolo, 2007).

Assuming your mother's husband is the biological or adoptive father of all five children, it depends on what his will says.

If it specifies that he intended to leave nothing to the other children, and give all he had to his youngest daughter, then that's what the law requires.

If it is possible that the children can argue that he simply forgot to mention them, they can try to get what's called an "omitted child" share of the estate. In most states, omitted children are entitled to what they would have received had there been no will at all. In this case, 1/5th of the estate, as it would be divided equally among all five children.

There are exceptions to this rule--the big one being when the omission is intentional, which is why the exact wording of the will is so important. The other exception is if the decedent made some other provisions for the omitted children, such as leaving them an insurance policy or a retirement plan that passed outside of the will.

Community Answers

A fellow caregiver answered...

This did not answer my specific question regarding the child of a deceased biological child that was intentinally left out of the grandfather's will. The will was changed after the biological child passed away without leaving the grandson the son's portion.