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Wills • Intestate Succession
WILLS#049
Legal Definition
A parent can decline to leave anything to their child or children. A child omitted from a pre-birth will, however, receives their intestate share unless: (1) the omission was intentional as shown in the will; (2) the child is provided for in transfers outside the will; or (3) the testator had other pre-born children and left their estate to the parent of the omitted child.
The same principle applies where the testator fails to provide for a child solely because the testator believes the child is dead or is unaware of their birth.
The same principle applies where the testator fails to provide for a child solely because the testator believes the child is dead or is unaware of their birth.
Plain English Explanation
As you've learned in other cards, courts are very interested in trying to divvy up a dead person's estate based on however the dead person would have genuinely wanted it to be done. In an ideal world, wills would always reflect a dead person's intent. In the real world, however, this isn't always the case.
For example, it is not uncommon for a person to create a will before they have children, then forget to update the will before they die. It would be pretty messed up for a court to look at a dead person's children and say, "Sorry, you get nothing because your dead parents forgot to update their will and put you in it." For this reason, a forgotten child will generally get their intestate share of the dead parent's estate unless one of the following is true:
(1) The dead parent intended to not leave their children anything and it can be shown based on language in the will. For example, if it says something like, "I believe in tough love, so if I ever have children, I do not want them to have a cent of my estate."
(2) If it can be shown that the child was benefited outside of the will, then a court may not be willing to let them get more stuff through intestacy.
Or (3) if a dead parent had other children that were born before the will was created, and the dead parent left their estate to the children's living parent.
For example, it is not uncommon for a person to create a will before they have children, then forget to update the will before they die. It would be pretty messed up for a court to look at a dead person's children and say, "Sorry, you get nothing because your dead parents forgot to update their will and put you in it." For this reason, a forgotten child will generally get their intestate share of the dead parent's estate unless one of the following is true:
(1) The dead parent intended to not leave their children anything and it can be shown based on language in the will. For example, if it says something like, "I believe in tough love, so if I ever have children, I do not want them to have a cent of my estate."
(2) If it can be shown that the child was benefited outside of the will, then a court may not be willing to let them get more stuff through intestacy.
Or (3) if a dead parent had other children that were born before the will was created, and the dead parent left their estate to the children's living parent.
Hypothetical
Hypo 1: Bob and Amy have a son, Timmy. The next day, Bob creates a will that leaves everything to Amy upon his death. A year later, Bob and Amy have another son, Junior. The day after Junior is born, Bob dies. Do Timmy and Junior get any piece of the estate? Result: Timmy is not a pretermitted child because Bob created the will after Timmy was born, so his omission was likely intentional. However, Junior is a pretermitted child, as Bob created the will before Junior was born and never updated it to reflect how Bob wanted Junior to be treated. Since the will gives everything to Amy, who is also Junior’s parent, many courts may find that Bob intended for Amy to care for their children, including Junior. This could mean Junior does not inherit directly. However, depending on the jurisdiction, Junior may be entitled to a share of the estate as a pretermitted child.
Related Concepts
How is property distributed where a decedent has no surviving spouse?
In California, what is the result of a pretermitted spouse?
In California, what is the result of intestate succession for a surviving spouse?
What is an advancement?
What is intestate succession?
What is per capita by right of representation?
What is per stirpes?
