Heath Ledger died, unmarried, at the age of 28. At the time, he had a two-year old daughter, Matilda Rose, and a will. The will, drafted before Matilda’s birth, did not mention her. So she gets nothing, right? Not necessarily. While the heirs of Ledger’s estate (his sister and parents) ultimately came to a private settlement regarding Matilda’s share of his estimated $20 million estate, depending on what state (or country) laws would have been applied, Matilda may actually have been entitled to his entire estate.
Most states have “pretermitted heirs” laws, which provide for spouses and children that come about after a will or trust was drafted, and which was never amended or updated.
In California, per Probate Code Section 21620, children born or adopted after a will or trust is made, and who are not mentioned therein are pretermitted heirs, and will receive an amount of the decedent's probate property equal in value to what he or she would have received if the decedent had died without a will. This includes illegitimate children. In California, then, Ledger’s daughter, because he was unmarried, would have been entitled to his entire estate.
Similarly, a marriage after the execution of a will means the new spouse can take his or her share of the decedent’s property as though no will had been made - as though the decedent had died intestate. Probate Code Section 21610. However, this does not apply where the new spouse has waived their inheritance in a prenuptial agreement.
Other circumstances may warrant treatment as a pretermitted heir. Where the decedent failed to provide for a child because they believed the child to be dead, the child is entitled to his or her intestate share. The same is true where the decedent never knew of the child’s existence. And pretermitted heir laws apply to grandchildren, as well.