omitted heir

An omitted heir, sometimes referred to as a pretermitted heir, is a child that has been omitted from a decedent’s will but would have otherwise inherited from that estate if it were under intestate succession. Omitted heirs often appear in situations where a child is born to or adopted by the testator after their will was written, and the will was not updated to reflect this change. 

Most states have now adopted statutes protecting omitted heirs in some form. These statutes generally allow for an omitted heir to claim their intestate share, with the assumption being there is no contrary intent to disinherit them. For example, California Probate Code § 21620–21622 provides for omitted heirs born or adopted after a will is executed, including children whose birth the decedent was unaware of or those thought dead, subject to some exceptions partially summarized as follows:

• The decedent intended to not provide for the omitted heir as shown by the testamentary instruments,
• The decedent devised or directed the disposition of substantially all of the estate to the other parent of the omitted heir, or
• The decedent gave the omitted heir a gift outside of the will with the intention it would substitute for a gift in the will.

[Last reviewed in January of 2026 by the Wex Definitions Team] 

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