Also known as: omitted child · omitted spouse · omitted children · omitted heirs · pretermitted heir · pretermitted child · pretermitted spouse
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule that entitles an after-born or unintentionally omitted child to receive a share of the testator's estate. The share equals the intestate portion when the testator had no living children at will execution unless the will devised all or substantially all of the estate to the omitted child's other parent who survives and takes under the will. When the testator already had living children at execution and devised property to them the omitted child's share is limited to the devises made to those then-living children.
Select any source to read its text and confirm it supports the definition.
Oscar Ortiz executed a will while childless leaving his entire estate to his then-girlfriend. Years later Oscar and a different partner had a son named Oliver. Oscar died without revising the will. Oliver petitions for an omitted-child share. Because Oscar had no living children at execution the statute awards Oliver the share he would have received in intestacy.
Oriana Oberman executed a will leaving specific parcels to her two then-living daughters. After execution Oriana had a third daughter named Octavia. Oriana died without updating the will. Octavia claims an omitted-child share. The statute limits Octavia's portion to the devises made to the two daughters already living at execution.
An omitted child receives an intestate share when the testator had no living children at will execution and failed to provide for the later-born child in the will. The exception applies only if the will devised all or substantially all of the estate to the omitted child's other parent who survives and takes under the will.
Supporting sources
The omitted child's share is limited to the devises made to the testator's then-living children under the will. The omitted child then receives the share the child would have received if all omitted children had been included with the then-living children and given equal shares.
Supporting sources
No. Omitted-child statutes protect children omitted from the will regardless of whether the testator provided lifetime support. The statute focuses on the absence of a testamentary provision rather than on informal expressions of intent or outside transfers.
Supporting sources
The omitted child receives no share. The statute's exception bars the claim when the will devises all or substantially all of the estate to the omitted child's other parent who survives and is entitled to take under the will.
Supporting sources