Legal Definitions - pretermission statute

A pretermission statute (also known as a pretermitted-heir statute) is a law designed to protect certain heirs, typically children, who were unintentionally omitted from a will.

The core idea behind these statutes is a legal presumption that if a will does not mention a direct heir (like a child), the omission was likely an oversight or accident, rather than an intentional decision to disinherit them. In such cases, the statute allows the unintentionally omitted heir to receive a share of the deceased person's estate, often as if the person had died without a will (intestate) or a specific portion defined by law. These laws aim to prevent unintended disinheritance and ensure that a testator's true wishes, which are presumed to include providing for their close family, are carried out.

Here are some examples illustrating how a pretermission statute might apply:

• Example 1: After-Born Child

  Sarah drafts a will leaving all her assets to her husband, Michael. Five years later, Sarah and Michael have a daughter, Emily. Sarah then passes away suddenly without ever updating her will to include Emily. Under a pretermission statute, Emily, as an after-born child not mentioned in the will, would likely be entitled to a share of Sarah's estate, as it's presumed Sarah did not intentionally disinherit her newborn daughter.

  This illustrates the term because Emily was born after the will was created and was not provided for or mentioned, leading the law to presume her omission was unintentional.

• Example 2: Forgotten Existing Child

  David has three adult children: Alex, Brenda, and Chris. When drafting his will, David explicitly states, "I leave my entire estate to my children, Alex and Brenda." However, he makes no mention of Chris, and there is no other evidence, such as a separate document or specific language in the will, indicating that David intended to exclude Chris. A pretermission statute might allow Chris to claim a share of David's estate, arguing that his omission was an oversight rather than a deliberate act of disinheritance.

  This demonstrates the statute's application where an existing child is simply not mentioned in the will, and there's no clear evidence of an intentional decision to exclude them.

• Example 3: Child Believed to Be Deceased

  Maria had a son, Leo, many years ago, but due to a misunderstanding and lack of contact, she genuinely believed Leo had passed away in his youth. She later drafts a will leaving her estate to her other relatives, making no mention of Leo. Years later, Maria dies, and it is discovered that Leo is, in fact, alive. A pretermission statute could allow Leo to inherit from Maria's estate, as her failure to include him in the will was based on a mistaken belief that he was no longer living, not an intentional decision to disinherit him.

  This example shows how the statute addresses situations where an heir is omitted due to a factual error or misunderstanding on the part of the person making the will, reinforcing the idea of unintentional omission.