Also known as: pretermitted children · omitted child · pretermitted heir
Written by attorneys — see sources 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.
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.
In January 1993, Lauren Woodward and her husband Warren Woodward, who had been married for approximately three and one-half years and remained childless, learned that Warren had leukemia. The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment. Warren underwent an unsuccessful bone marrow transplant and died in October 1993, after which Lauren was appointed administratrix of his estate. In October 1995, Lauren gave birth to twin girls who had been conceived through artificial insemination using Warren's preserved semen. In January 1996, she applied to the Social Security Administration for child's insurance benefits under 42 U.S.C. § 402(d)(1) and mother's benefits under 42 U.S.C. § 402(g)(1). The SSA denied the claims on the ground that the twins were not the husband's children within the meaning of the Act. In February 1996, while pursuing appeals from the SSA denial, Lauren filed a complaint for correction of birth record in the Probate and Family Court against the clerk of the city of Beverly, seeking to add Warren as the father on the twins' birth certificates. In October 1996, a Probate Court judge entered a judgment of paternity based on stipulations of voluntary acknowledgment of parentage and ordered the birth certificates amended to declare Warren the children's father. An administrative law judge conducted a de novo hearing. The judge concluded that the children did not qualify for benefits because they were not entitled to inherit from Warren under Massachusetts intestacy and paternity laws. The SSA appeals council affirmed that decision. Lauren appealed to the United States District Court for the District of Massachusetts. The court certified the question regarding the inheritance rights of posthumously conceived children under Massachusetts intestacy law to the Supreme Judicial Court because the parties agreed that a determination under state law was dispositive and no directly applicable precedent existed.
View caseA 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.
Supporting sources
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
…on behalf of her minor children, and as administratrix of the estate of Warren Woodward (husband). : The term "natural child" (or "natural children") does not occur in any applicable Massachusetts statute. It is a term drawn from Federal legislation. See, e.g., 42 U.S.C. § 416(e) (1994) and 20 C.F.R. § 404.355…