Legal Definitions - omitted heir

An omitted heir, sometimes referred to as a pretermitted heir, describes a child who is not mentioned or provided for in a parent's will, but who would typically be entitled to inherit from that parent's estate under the law. This situation most commonly arises when a child is born or adopted after the parent has already created their will, and the will is never updated to include them.

Courts generally presume that such an omission was unintentional, unless the will clearly states that the parent deliberately chose to exclude the child. To address these situations, many states have specific laws (often called "pretermitted heir statutes") that allow an omitted child to claim a portion of the deceased parent's estate, as if the parent had died without a will. However, these laws usually include exceptions, such as when the parent intentionally disinherited the child, provided for the child through other means outside the will, or left substantially all of their estate to the child's other parent.

• Example 1: Birth After Will Creation

  Maria and Robert drafted their wills in 2015, leaving all their assets to each other, and then equally to their two children, Sofia and Daniel. In 2018, they welcomed a third child, Elena. Tragically, Robert passed away unexpectedly in 2023 without ever updating his will to include Elena. Under the laws of many states, Elena would be considered an omitted heir because she was born after the will was executed and was not mentioned or provided for in Robert's existing will, and there's no indication Robert intended to exclude her.

• Example 2: Adoption After Will Creation

  Mr. Henderson, a single individual, created a will in 2010, designating his entire estate to his favorite charity. In 2016, he adopted a son, Alex, and became a devoted father. Mr. Henderson died in 2024, and his will had not been revised since 2010, meaning Alex was not mentioned. In this scenario, Alex would likely be deemed an omitted heir. The court would presume that Mr. Henderson did not intend to disinherit his adopted son, especially since Alex became part of the family after the will was made, and would likely allow Alex to inherit a share of the estate.

• Example 3: Unawareness of Child's Existence

  Ms. Davies wrote her will in 1995, leaving her estate to her brother. Unbeknownst to her, she had given birth to a child, Mark, in 1975, whom she believed had been stillborn due to misinformation at the time. Years later, after Ms. Davies' death, Mark, now an adult, discovers his biological parentage and learns he was Ms. Davies' son. If Mark can prove his relationship and that Ms. Davies was genuinely unaware of his survival, he could be considered an omitted heir. The law would likely presume Ms. Davies would have included her child in her will had she known he was alive, allowing Mark to claim a portion of her estate.