Cite as B290526
Filed August 3, 2020
Second District, Div. Three
By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
Headnote: Trusts – Omitted Children
Summary: A general disinheritance clause suffices to express a decedent’s intent to disinherit potential heirs living at the time of execution of a will or trust, even if unknown to the decedent.
Hugh O’Brian established a trust to benefit his surviving spouse, named friends and family members, and a charity following his death. O’Brian did not provide for two of his biological children, Kimberly Rallo and Adam Ross, and stated in the trust that he had no children. Following O’Brian’s death, Rallo and Ross sought an intestate share of the estate on the basis that O’Brian omitted them solely because he was unaware of their birth. The trust contained a general disinheritance clause indicating that O’Brian intentionally and with full knowledge omitted “any of [his] heirs who may be living at the date of [his] death,” or any person “who claims to be a descendant or heir of mine…’ The trustee demurred to Rallo’s and Ross’s petitions on the ground that they failed to state a claim for relief. The trial court sustained the demurrers without leave to amend. Rallo and Ross appealed.
Held: Affirmed. Omitted children born before execution of a testamentary document have a statutory right of recovery of an intestate share of the decedent’s estate if the sole reason for the omission was because the decedent believed the child to be dead or was unaware of their birth. The burden of proof is on the omitted child. Ross and Adams argued that a general disinheritance clause cannot establish a decedent’s intention to omit children already living at the time of execution. However, nothing in the statute prevents the use of a general disinheritance clause to express intent to disinherit potential heirs living at the time, even if unknown to the trustor. As to children whose birth the decedent is unaware of, the burden is on the omitted child to plead and prove facts demonstrating that the sole reason for the omission was the decedent’s unawareness of their births.