Pretermitted heir
A child left out of a will who was born or adopted after it was signed, and who may inherit anyway.
What it means
A will written before a child was born will not mention that child. Rather than assume the omission was deliberate, most states assume it was an oversight, and give the omitted child a share of the estate as if there had been no will at all.
The statutes are narrower than they first appear. They generally protect a child born or adopted after the will was executed, not a child who was alive and simply left out. And they yield to evidence that the omission was intended — a will saying "I have deliberately made no provision for any child born after this date" defeats the statute, as does provision made for the child outside the will, such as a life insurance policy.
A minority of states extend the same protection to a spouse married after the will was signed. Where they do, the omitted spouse takes an intestate share unless the will or a marital agreement says otherwise.
Why it matters
It changes the arithmetic of an estate without appearing anywhere in the will, and an executor distributing on the will's plain words can distribute wrongly.
For a family, it is often the answer to "my father's will was written before I was born and does not mention me" — and the answer is usually not that they were disinherited.
When you are likely to meet it
- When a will predates the birth or adoption of one of the children.
- When somebody married after the will was made and is not named in it.
- When an executor is working out shares and one child is absent from the document.
How this varies by state
Whether the statute reaches children alive when the will was made, and whether it protects a later spouse, is set by state law.