Legal Definitions - pretermitted defense

A pretermitted-heir statute is a state law designed to protect certain close family members, typically children or spouses, who are unintentionally left out of a deceased person's will. These laws operate on the assumption that if a will does not mention a direct heir, especially one born or married after the will was initially created, the omission was an oversight rather than a deliberate decision to disinherit them.

If a person is determined to be a "pretermitted heir" under such a statute, they are usually entitled to receive a share of the deceased person's estate as if there had been no will at all (known as dying "intestate"). This protection applies unless there is clear evidence within the will itself, or sometimes from other sources, that the omission was intentional.

Here are some examples illustrating how a pretermitted-heir statute might apply:

• Example 1: An Afterborn Child

  Sarah drafts a will leaving her entire estate to her brother. Two years later, she gives birth to a daughter. Sarah then dies suddenly in an accident without ever updating her will to include her daughter.

  Explanation: A pretermitted-heir statute would likely apply here. Since Sarah's daughter was born after the will was created and was not mentioned, the law presumes her omission was an unintentional oversight. The daughter would typically receive a share of Sarah's estate as if Sarah had died without a will.

• Example 2: An After-Married Spouse

  David executes a will distributing his assets among his adult children. A few years later, he marries Emily. David then passes away without having revised his will to include Emily.

  Explanation: In many jurisdictions, a pretermitted-heir statute (or a similar spousal protection law) would consider Emily a pretermitted spouse. Because she married David after he made his will and was not mentioned, the law would assume her omission was unintentional, granting her a portion of David's estate.

• Example 3: An Afterborn Child with a Later Will Update for Other Reasons

  Mr. Jones creates a will leaving specific investments to his two adult children from a previous marriage. A year later, he remarries and has a new baby. Five years after the baby's birth, Mr. Jones updates his will to change the executor and add a charitable donation, but he still does not mention his youngest child. He then passes away.

  Explanation: Even though Mr. Jones updated his will, the pretermitted-heir statute would likely still protect his youngest child. The child was born after the original will was made, and the subsequent will update did not address the child's inheritance. The law would presume the omission of the afterborn child was an inadvertent oversight, entitling the child to a share of the estate as if Mr. Jones had died without a will, unless there was explicit language in the will indicating an intentional disinheritance of *any* future children.