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PRETERMITTED CHILDREN

1.  Definition

      A child who is born or adopted after will execution.  § 67(c).

2.  Purpose of Pretermitted Heir Statute

     Protect these “left-out” children by giving them a forced share of the estate under certain circumstances.

     Based on theory that the testator would have made provision for these children if he/she had considered the possibility of having a (or another) child.

3.  Methods to Avoid Application of Statute — § 67(a)

      Statute not apply (that is, no forced share created) if one of these are true:

    a.   Testator Provided For Pretermitted Child in Will

           e.g., “I leave all my property to my children.”  (class gift)

    b.   Testator Provided for Pretermitted Child by Non-Probate Asset

           e.g., by naming the pretermitted child as a beneficiary of a life insurance policy or P.O.D. account.

    c.   Testator Mentioned Pretermitted Child in the Will

           e.g., “I intentionally make no provision for any child who may be hereafter born or adopted.”

4.  Computation of Pretermitted Child’s Share If Will Makes No Gift to Testator’s Children

    This can occur if:

      §  T has one or more children living when will executed but leaves them nothing — § 67(a)(1)(A); or

      §  T has no child living when will executed — § 67(a)(2)

    Step One:  Ascertain amount of estate not passing to pretermitted child’s other parent.

    Step Two:  Give pretermitted child a share of this amount as if testator had died intestate with no surviving spouse (see § 38(a)(1)).  When figuring the intestate share, count all children, not just the pretermitted children.  All other beneficiaries receive proportionately less.

5.  Computation of Pretermitted Child’s Share If Will Provides for at Least One of Testator’s Then Living Children ‑ § 67(a)(1)(B)

    Step One:  Ascertain amount of estate given to testator’s children.

    Step Two:  Ascertain number of children named as beneficiaries in testator’s will.

    Step Three:  Ascertain number of pretermitted children.

    Step Four:  Add results of Steps Two and Three.

    Step Five:  Divide result of Step Four into result of Step One.  Each pretermitted child gets this amount.  Other children beneficiaries receive proportionately less.

    Note:  In giving pretermitted child his/her share, all efforts should be made to make the interest of the same character (equitable, fee, life estate) as the testator conferred upon children under the will.  § 67(a)(B)(iii).

6.  Sources of Property to Recover Pretermitted Child’s Share ‑ § 67(b)

    a.   Other children or other beneficiaries ratably

          If possible, preserve the character of the testamentary plan adopted by the testator.

    b.   Not from other parent of the pretermitted child.

7.  Moral

     Plan for the possibility that a child may be born or adopted after will execution.

     E.g., expressly mention or provide for the child to prevent this statute from operating.

    Even important in cases where testator is too old to have children; grandparents may adopt grandchildren, older people may adopt disadvantaged children, etc.

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