Also known as: pretermitted spouse · pretermitted child · pretermitted children · pretermitted heir · pretermitted heirs · omitted spouse · omitted child · pretermitted heir statute
Written by attorneys — see sources below.
A statutory doctrine that protects a child unintentionally omitted from a will by granting an intestate share of the estate. The protection applies when the will was executed before the child's birth or adoption and no provision was made for the omitted child. An exception withholds the share when the will devises substantially all of the estate to the omitted child's other parent who survives and takes under the will.
Noah executed a will while single and childless that left his entire estate to his girlfriend Mia. Years later Noah had a son Liam with a different partner and never updated the will. After Noah died in a climbing accident Liam petitioned for a share. Because the will did not leave substantially all of the estate to Liam's other parent the court awarded Liam the share he would have received in intestacy.
Evan executed a will leaving all property to his then-wife Lena. After divorce Evan remarried and had daughter Chloe but never revised the will. Chloe claimed an omitted-child share. Because the will had devised property to then-living children the court limited Chloe's share to the portion devised to those children and divided it equally among all children including Chloe.
After executing a will that left his estate to two existing children, a testator had a third child and never revised the will. The omitted child petitioned for a share. Because the will had devised property to the then-living children the court limited the omitted child's share to that pool and divided it equally among all three children.
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 The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment.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 caseAn omitted child receives an intestate share when the testator had no living child at the time the will was executed and later fails to provide for the child in the will. The share is withheld only if the will devised all or substantially all of the estate to the other parent who survives and takes under the will.
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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 an equal portion of that limited pool along with the other children.
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No. Omitted-child statutes protect children born after will execution regardless of whether the testator provided lifetime support. The statute supplies a default share unless a specific exception such as a complete devise to the other parent applies.
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The omitted child receives no share. The statute withholds protection when the will devises all or substantially all of the estate to the surviving other parent who is entitled to take under the will.
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Footnotes : Lauren Woodward (wife), on her own behalf as parent and guardian and 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…