I draft numerous plans for couples that have started a family. Many times, the couple will execute their estate plan after the birth of their first child but plan on having additional children. Most clients in this position will ask how their estate plan will work if another child is born after they have executed and put their plan in place. Well, there is a simple legal doctrine for that called the “pretermitted” child or “omitted” child doctrine.
A pretermitted child is a child who is:
- Born or adopted after the parent’s will is executed, and
- Who is not otherwise provided for by the parent.
Many states have statues that permit a pretermitted child to receive, or demand, an inheritance under the will. Many states will allow the pretermitted child to claim an intestate share of the estate. Other states allow for the inheritance going to a pretermitted child to be an amount comparable to the distributions made in the will for children who were alive when the will was signed.
The share carved out for the pretermitted child comes from the other heirs’ share. The pretermitted child’s share does not necessarily come from the share of other the children. The pretermitted share could come from the share going to other heirs. You can see how this might lead to litigation in large estates as heirs fight it out to protect their inheritance.
Another issue is that this doctrine only covers a person’s probate estate. Beneficiary designations, if not correctly stated, could result in that pretermitted child not being able to receive distributions from a paid-on-death account.
Many estate planning attorneys, in the attempt to avoid litigation, will counsel clients to include a clause in their will affirming that any after born children will be included or not included in the testator’s estate.
However, as I stated before, a testator can disinherit any heir, except for their spouse, and a pretermitted child is no different. All a testator needs to do is include a clause in the testator’s will that states any heirs unknown at the time that will is executed, or any heirs not named in the will are disinherited.
A less than perfect example of this situation was the October 2010 Estate of Month of Michael Crichton. It is a little puzzling that the Court provided for the pretermitted child even though Crichton had a disinheritance clause in his will. The likely reasoning for the Court’s ruling was that the pretermitted child was born a few months after Crichton’s death, and he acknowledged the post-death born child would be his.
Now, you will ask yourself, how the pretermitted child doctrine (“the Caputo case”) meshes with the Social Security issue that was before the Supreme Court in March of this year. In May, the Supreme Court ruled that a post-death conceived child is considered pretermitted and would be eligible to receive Federal Death Benefits. Much of the Supreme Court’s ruling relied on state laws that provide procedural controls.
But, the Caputo case is a perfect demonstration that if you want your pretermitted children protected, it always makes sense to update your will to reflect any children born or adopted after the execution of your will.