Pretermitted Child
Overview
A pretermitted child is a child who is unintentionally omitted from a parent's will or trust, typically because they were born or adopted after the document was created. This legal term is crucial in estate planning as it provides protection for children who might otherwise be accidentally disinherited.
Key Components and Legal Implications
Definition in Detail
- A pretermitted child is:
- A child born after a will is executed
- A child adopted after a will is executed
- A child who was unknown to the testator when creating the will
- A child who was mistakenly believed to be deceased when the will was created
Legal Protections
Most states have pretermitted heir statutes that provide automatic protection for overlooked children. These laws typically:
- Grant the omitted child a share of the estate similar to what they would have received under intestacy laws
- Protect the child's inheritance rights unless specifically disinherited
- Apply only to natural or legally adopted children
Common Scenarios
When Pretermitted Child Laws Apply
- Birth after will execution: Parents create a will before having children
- Unknown children: Discovery of previously unknown children after death
- Post-adoption situations: Children adopted after will creation
- Mistaken belief: Child thought deceased but actually alive
Important Distinctions
What's Not Considered a Pretermitted Child
- Children intentionally disinherited
- Stepchildren (unless legally adopted)
- Children born/adopted before will execution but simply not mentioned
- Children specifically addressed in will amendments
FAQ Section
Q1: Can a pretermitted child be intentionally disinherited?
A: Yes, but it must be done explicitly in the will or through a clear statement of intention to disinherit.
Q2: How much does a pretermitted child inherit?
A: This varies by state but typically equals the share they would have received under intestacy laws.
Q3: Do pretermitted child laws apply to trusts?
A: This varies by jurisdiction; some states extend protection to trusts while others limit it to wills.
Q4: What proof is needed to claim pretermitted child status?
A: Generally required:
- Birth certificate or adoption papers
- Proof of parent-child relationship
- Evidence that omission was unintentional
Practical Considerations
Prevention Strategies
- Regular will updates after major life events
- Including provisions for future children
- Explicit statements about intention to include/exclude certain children
- Regular estate plan reviews
Summary
Understanding the concept of a pretermitted child is essential for both estate planners and individuals creating wills. This legal protection ensures that children aren't accidentally disinherited due to timing or oversight. However, it's always better to maintain an updated estate plan that explicitly addresses all children rather than relying on pretermitted child statutes for protection.
Best Practices
- Review estate plans regularly
- Update documents after births, adoptions, or discoveries of unknown children
- Be explicit about intentions regarding children's inheritance
- Consult with legal professionals to ensure proper handling of all potential heirs
Note: Laws regarding pretermitted children vary by state, so it's important to consult with a local estate planning attorney for specific guidance.
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Related Terms
Here are some related terms that are relevant to the estate planning term "Pretermitted Child":
- Intestacy – The legal process that determines how a person's assets are distributed if they die without a valid will.
- Disinheritance – The act of intentionally excluding an heir from inheriting part or all of an estate.
- Heir – A person who is entitled to receive a share of a deceased person's estate under the laws of intestacy.
- Testator – The person who creates a will and specifies how their assets should be distributed after their death.
- Beneficiary – A person or entity named in a will or trust to receive a portion of the deceased's assets.
- Probate – The legal process of administering a deceased person's estate and distributing their assets.
- Estate Planning – The process of arranging the transfer and management of an individual's estate upon their death or incapacitation.
- Unintentional Omission – The accidental exclusion of an heir from a will or trust, often due to a change in family circumstances.
- Afterborn Child – A child born after the creation of a will, who is not specifically mentioned in the document.
- Adopted Child – A child who is legally adopted and may have inheritance rights under pretermitted child laws.
These related terms provide additional context and understanding around the concept of a pretermitted child and its importance in estate planning.
