Legal Definitions - pretermitted heir

A pretermitted heir is a legal term for a child who was unintentionally left out of a parent's will. The law generally presumes that a parent intends to provide for their children. Therefore, if a will does not mention a child, and there's no clear indication that the omission was deliberate, many states have "pretermitted heir statutes" designed to protect that child.

These statutes aim to correct what is presumed to be an oversight, rather than an intentional act of disinheritance. In such cases, the pretermitted heir may be entitled to receive a portion of the deceased parent's estate, often the same share they would have received if the parent had died without a will at all (known as dying intestate). The specific rules vary by state, but commonly, these protections apply to children born or adopted after the will was created, as it's presumed the parent would have included them if they had been alive or known about at the time the will was drafted. Some states also extend protection to children who existed when the will was made, if their omission was truly accidental.

However, these statutes do not apply if the will clearly demonstrates an intent to exclude the child. If the will explicitly states that a particular child is to receive nothing, or if the language strongly implies a deliberate omission, then the child would typically not be considered a pretermitted heir.

Here are some examples illustrating the concept of a pretermitted heir:

• Example 1: Child Born After Will Creation

  Mr. Henderson drafted a will in 2010, leaving all his assets equally to his two children, Sarah and Michael. In 2015, Mr. Henderson married again and had another child, Emily. He passed away suddenly in 2023 without ever updating his will to include Emily. Under pretermitted heir statutes, Emily would likely be considered a pretermitted heir. The law would presume that Mr. Henderson simply forgot or did not have the opportunity to update his will after Emily's birth, rather than intentionally disinheriting her. As a result, Emily would typically receive a share of his estate, often as if he had died without a will.

• Example 2: Child Adopted After Will Creation

  Ms. Davies created a will in 2008, designating her biological son, Alex, as her sole beneficiary. In 2012, she adopted a daughter, Chloe, and welcomed her into her family. Ms. Davies passed away in 2020, and her will had not been revised since 2008. In this scenario, Chloe would likely be considered a pretermitted heir. The legal presumption is that Ms. Davies intended to provide for Chloe, her adopted child, but inadvertently failed to update her will after the adoption. Chloe would then be entitled to a portion of Ms. Davies' estate, similar to how a biological child born after the will would be treated.

• Example 3: Unintentional Omission of an Existing Child (in some states)

  Mr. Chen had three children: David, Lisa, and Mark. When drafting his will, he mistakenly listed only David and Lisa as beneficiaries, intending to include all three but accidentally overlooking Mark due to a clerical error or oversight. Mr. Chen then passed away. In states that extend pretermitted heir protection to children existing at the time the will was made, Mark could argue he is a pretermitted heir. The court would look for evidence that the omission was genuinely unintentional, rather than a deliberate choice to disinherit him. If no such intent to disinherit Mark is found in the will itself, Mark might be entitled to a share of the estate.