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By: Scott Grossman on August 28th, 2016

How To Determine Whether A Child Was Intentionally Omitted From A Will

As you work towards administering the estate of your loved one, you are closely following the instructions laid out in the will or trust. These documents may provide for some of your loved one’s children while failing to provide for others. In some cases, these “left out” children may have legal rights to the estate assets regardless. The children can pursue litigation against the estate in order to enforce these rights if they choose.

When Does an Omitted Child Have a Right to His Parents’ Estate?

The question of whether an omitted child has a legal right to his parents’ estate is somewhat misleading. While truly omitted children typically do not have legal rights unless they can prove fraud, duress, or some other reason for overturning the validity of the will or trust, children who are accidentally left out may have rights. Children falling under this category are referred to as “pretermitted” rather than “omitted.” The following are helpful tips for determining whether a child is pretermitted rather than omitted, and therefore may have grounds to enforce legal rights in the estate assets despite not being included in the will or trust:

  1. Did the will or trust specifically state that the child is to be omitted from receiving any of the estate assets? When a testator intends to specifically omit a child, the will or trust will contain a provision that addresses this intentional omission.
  2. Was the allegedly omitted child born after the date that will or the trust was signed?
  3. Did the will or trust fail to address children who were born or adopted after the date that the document was signed? If this is the case, the omission may have been unintentional. As a result, the child is considered “pretermitted”.

If a child is deemed to have been pretermitted rather than omitted, he or she may be entitled to receive a share of the parents’ estate equal to what he or she would have received had the parents died without a will. Certain additional conditions must be first be met, however.

In cases where a child was omitted but believes the omission was fraudulent, further legal action may be necessary. To learn more, we encourage you to contact us directly.

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