Pretermitted Heir

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Pretermitted Heir

A child or other descendent omitted from the will of a testator.

Modern laws concerning the inheritance of property attempt to protect the rightful heirs. A pretermitted heir is a child or descendant of the testator—the maker of a will—who has unintentionally been omitted from the will. States have enacted "pretermitted heir statutes" that protect these heirs.

The presumption of these statutes is that the testator must expressly disinherit a child or descendant in his or her will. This presumption dates back to early Roman Law. If the will does not specify intention to disinherit, the law will presume that the omission of the child or descendant was unintentional. These statutes authorize the child or descendant to take the same share of the estate that he or she would have taken if the testator had died intestate, without a will. All states have fixed, objective rules for dividing property when a person dies without a will, which apply to the division of an estate for pretermitted heirs.

A pretermitted heir must be a child or descendant either living at the date of the execution of the will or born thereafter. For example, if John executes a will and his son Bob is born a week later, Bob will be considered a pretermitted heir unless John changes his will to expressly disinherit Bob. If Bob has a child and dies before John, at John's death the grandchild will share in John's estate, because he or she will take Bob's share.

Some states have specific laws that deal with a child born after the making of a will. These after-born heir statutes are similar to pretermitted heir provisions. The presumption is that an After-Born Child does not revoke a will but has the effect of modifying it.

Louisiana and Puerto Rico protect children and descendants in a different way. These jurisdictions, which come from a civil-law rather than a common-law tradition, grant heirs an indefeasible share. This share is a certain portion of the estate, usually expressed in a fixed dollar amount, and a percentage of the decedent's estate.


Descent and Distribution.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

pretermitted heir

n. the child of a person who has written a will in which the child is not left anything and is not mentioned at all. After the death of the parent, a pretermitted heir has the right to demand the share he/she would have received as an heir under the laws of distribution and descent. The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out. Thus, if someone wishes to disinherit a child or omit him/her from his/her will, that parent should specifically state in the will: "I leave nothing to my son, Gordon," with or without stating a reason. Otherwise there may be unfair and unintended results. Example: Tommy Testator has three children, gives two of them $10,000 each, and the remainder (which turns out to be a million dollars) to set up a scholarship fund for orphans. His omitted child, who has not spoken to him for 20 years, is a pretermitted heir entitled to one-third of the estate, and will receive $340,000 compared to his siblings specified $10,000 each. (See: heir)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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For example, a testator's statement in a will that "any child of mine omitted from this will receives no share of my estate under the pretermitted child statute," suffices to preempt that statute.
Testators are now and then anxious to preclude unknown or as yet unborn children from taking a share of an estate governed by a complete will under pretermitted child statutes; in most states, these statutes set aside a share (traditionally, an intestate share) of the estate for any child born after the will is executed, or, in a minority of states, for any child, whenever born, omitted without mention in the will.
The new parents will want to name a guardian in the event of both parents' demise during minority, create a testamentary or lifetime trust to avoid appointment of a guardian of the property of the minor, and revise wills to avoid pretermitted child treatment.
Clauses of this sort often look suspiciously like ones designed to avoid the application of a pretermitted child statute, as opposed to the intestacy statute.
1967) (finding that a global negative will sufficed to override the pretermitted child statute); Benolken v.
[subsection] 732.301 (pretermitted spouse), 732.302 (pretermitted child), 732.806 (advancement), containing exceptions when spouse or child is not pretermitted due to provision, waiver, advancement, or intention in will or agreement.