Not to be personal, but are you a pretermitted child?
If you are, then you could be in luck.
A pretermitted child is one who is born or adopted during a parent’s lifetime or after that parent’s death, and after execution of that parent’s will. You have some protection to your inheritance if you were not provided for or mentioned in your parent’s will.
Here is a quick example. Ruth is married to Robert. They have no children. Ruth has a beloved brother, Sam. Ruth makes out her will, leaving $500,000 to her husband Robert, and the remainder of her estate to her brother Sam.
Two years later, Ruth and Robert are blessed with an unexpected child: you. They are ecstatic. Ruth, busy with diaper pails and baby yoga, forgets all about changing her will. Then Ruth unexpectedly dies.
Upon Ruth’s death, you became a “pretermitted child” because you were born to Ruth after she executed her will, and her will did not mention you.
As a pretermitted child, the law now writes you into Ruth’s will. You do not receive any portion of the estate that was left to your father Robert, because the law says that any portion of the estate devised to your other parent is not affected. You do, however, receive all of the estate that was left to her brother Sam. The law says you will receive the same portion that you would have received if Ruth had died without a will and without a surviving spouse. As an only child, you would have inherited Ruth’s entire estate.
Let’s change our example. Ruth is still married to Robert, but this time they have two children. Ruth executes a will that leaves $120,000 to her two children, and the remainder of her estate to Robert. You are born after the will is executed. Ruth dies without changing her will.
As a pretermitted child, you are entitled to an equal portion of the estate that was left to the other children. Therefore, you and your siblings would each receive one-third of $120,000, or $40,000.
Yet another example: Ruth and Robert have two children. Ruth makes out her will and does not mention any children. Her will leaves $500,000 to husband Robert, and the remainder of her estate to beloved brother Sam. Then you are born, and Ruth dies.
What happens? You get one-third of your Uncle Sam’s inheritance. Why? Had your mom died without a will, then all three of her children would have inherited equal shares. But your siblings were alive when Ruth executed her will, so they are not pretermitted children. They get nothing, and you receive one-third.
Fourth example: Ruth and Robert are married. She executes her will. Then you are born. Robert dies. Ruth remarries but does not get around to making a new will. Then Ruth dies.
Under the general rule, as a pretermitted child you would receive the same share as if Ruth died without a will. However, Ruth had remarried. The law places a limitation on the reduction of the estate passing to the surviving spouse. You, the pretermitted child, cannot reduce the surviving spouse’s share by more than one-half.
Is there a way around the application of the pretermitted child law? Of course. Ruth could have specifically mentioned in her will “any child later born to or adopted by me,” or made other provisions for you outside her will and intended to take effect at her death.
Ruth did neither. Lucky you.
Attorney Virginia Hammerle is board certified in civil trial law by the Texas Board of Legal Specialization and an accredited estate planner. To receive her monthly newsletter, contact her at legaltalktexas@hammerle.com or visit hammerle.com. This column does not constitute legal advice.
