question.jpgIn Trusts and Estates

What happens if my will does not include one or more of my children?

In most states, the law attempts to protect spouses from being forgotten, disinherited, or even given a small inheritance, by providing the spouse with an opportunity to take a forced share. However, most states are not generally as protective when it comes to children. Thus, if someone specifically decides to disinherit a child and keep them out of the will, that child cannot take a forced share the way a disinherited spouse could.

However, most states do try to protect against accidental disinheritance. A child who is accidentally omitted from a will is known as a pretermitted heir, and this includes children who the deceased did not known about, inadvertently forgot about, or mistakenly believed to be dead. While each state has its own law regarding the specific qualifications necessary for a child to be deemed a pretermitted heir, the general requirement is the child must have been born after the will was executed (although some states may allow a child born before the will’s execution to be deemed a pretermitted heir).

Where it is determined that a child is a pretermitted heir who was mistakenly left out of the will, that child is entitled to take a forced share similar to a disinherited spouse. This forced share is a statutorily-defined amount of the deceased’s estate and while it varies from state to state, the amount is generally whatever that state’s intestacy statutes say the child would have received if the deceased had died without leaving any legally valid will.

Finally, in many states, the law includes specific situations where a child will not be entitled to such a forced share. One such situation is where there is evidence that the deceased intended to keep the child out of the will (in which case, the child is not a pretermitted heir, but was intentionally disinherited). Other situations that might appear in such state statutes would include where the will contains a general gift to “all my children,” or where the entire estate is left to the child’s other parent.