Also known as: pretermitted children · omitted child · pretermitted heir
Written by attorneys · grounded in primary & secondary sources — see below
A child born or adopted after a parent executes a will and omitted from that will. The child receives a statutory share of the estate equal to an intestate share unless a statutory exception applies.
Philip Powell executed a will while childless leaving his entire estate to his partner Paige Porter. Years later Philip and Paige had a son Pedro Pacheco. Philip died without revising the will. Pedro claims a share under the omitted-child statute.
Parker Phillips executed a will leaving apartment buildings to his three adult children. Years later Parker had another child Penelope Price and died without updating the will. Penelope seeks a share of the cash residue left to Parker's spouse.
Select any source to read its text and confirm it supports the definition.
Pablo Perez and his spouse executed a will while childless. After Pablo's death his spouse conceived and bore a child using preserved gametes. The child claims rights under the pretermitted-child statute in the probate proceeding.
A pretermitted child receives an intestate share when the testator had no living children at will execution and later fails to provide for the child in the will. The share equals what the child would have taken in intestacy unless the will left substantially all the estate to the other surviving parent who takes under the will.
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The share is limited to the devises made to the testator's then-living children under the will. The omitted child then receives an equal portion of that limited pool with the other children after ratable abatement.
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No. Lifetime support does not bar the statutory share unless the statute requires proof that the transfer was intended in lieu of a testamentary provision and that evidence is present.
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The exception does not apply. The pretermitted child still receives an intestate share because the recipient is not the omitted child's other parent who survives and takes under the will.
Supporting sources
…least in part, the burden borne by the citizens of the commonwealth"); G. L. c. 191, § 20 (establishing inheritance rights for pretermitted children); G. L. c. 196, §§ 1-3 (permitting allowances from estate to widows and minor children); G. L. c. 209C, § 14 (permitting paternity claims to be commenced prior to birth). See also G. L. c.…