Omitted Children (aka Pretermitted Children)

In most countries of the world, a decedent cannot disinherit either his spouse or his children.

In England's era of primogeniture, there was no testamentary freedom. The doctrine of primogeniture required that a father devise his land—the main form of wealth in England during the Middle Ages—to his eldest son, whether he wanted to or not. Eventually, the Statute of Wills was passed in 1540, allowing a parent greater freedom in devising his land, and, in time, testamentary freedom increased in England and its colonies, especially the United States.

Most countries in Continental Europe allow descendants a fixed share of the testator's estate. Austria, for instance, permits a child to claim ½ of what she would receive under intestacy. France only allows a testator to devise a fraction of his property, the fraction being contingent on the number of his children. While the children have a direct claim on the devised property in France, in Germany the testator's immediate family has the right to the pecuniary value from the beneficiaries of the will.

Louisiana still retains much of the French civil law, making it the only state in the United States that does provide a forced share for children. Under the state's Forced Heirs statute, any child under age 24, or disabled or incompetent children, have the right to receive a forced share, called the legitime, by representation unless the child loses the right because of such things as the commission of a serious crime, not communicating with the parents for 2 years or accusing the parent unjustly of a serious crime, marrying without the parents' permission while still a minor, or even interfering with a parent's attempt to write a will.

Commonwealth countries, such as Great Britain, Australia, New Zealand, and Canada have family maintenance statutes that give the family—including civil partners—the right to support from the estate.

Nowadays, only the United States has maintained a large degree of testamentary freedom. Every state in the United States except Louisiana allows a testator to disinherit his children. Some have argued that the reason to allow this testamentary freedom, in spite of the fact that parents have an obligation to care for their children, is that the threat of disinheritance can motivate the children to care for their parents in their old age, when they may require significant help.

Unlike a surviving spouse, descendants of the testator, including his children have no right to take under a will. There is no doctrine equivalent to community property or the elective share that ensures that a surviving spouse takes a share of the decedent's property. If a testator wants to disinherit his children, there are few legal impediments to doing so, especially if the children are adults. If the children are minor, then some states require that the decedent provide support for the children.

Omitted Children Doctrine

However, there is a legal doctrine that provides for omitted children that is much like the omitted spouse doctrine, to prevent the unintentional disinheritance of either spouse or children. If the testator has children (after-born children) or has adopted children (after-adopted children) after his will was executed, but the testator did not amend the will to include the children before his death, then there is a legal presumption that he meant to provide for them, but died before he could do so. The omitted child doctrine can also apply to children whom the testator mistakenly believed was dead, and some states also apply the doctrine to children whom the testator did not know about.

As with the omitted spouse, the presumption can be rebutted by any of the following:

  1. the disinheritance of the child was intentional and evident from the will;
    • a general disinheritance clause, stating that either the testator has no children or that the children are not to inherit are considered insufficient to rebut the presumption;
    • a nominal gift to a child is also considered insufficient to rebut the omitted child presumption.
    • The Uniform Probate Code, specifically UPC §2-302 and its commentary, does not require either a specific clause disinheriting a child nor a nominal gift; it is only enough to be clear that the omission of the child was intentional.
  2. the testator provided for the child outside of the will and the gift was in lieu of taking under the will;
    • a major factor in considering whether the gift was in lieu of taking under the will is the size of the gift.
  3. The testator gave a substantial portion of his estate to the parent of the omitted child.

Remedy for the Omitted Child

If it is concluded that a child was omitted, then the child takes an intestate share of the decedent's property, the amount of which generally depends on how many other children the testator had. A few states also allow the descendants of a deceased omitted child to take an intestate share under the will.

However, if the testator had children at the time of the will execution and the will provided for them, then an omitted child would take a pro rata share of their gift.

Example—Distribution to an Omitted Child

Under UPC §2-302, if the testator, with 3 children, bequeathed $12,000 to Child A and $6,000 to Child B, then the omitted Child C would receive:

1/3 of Child A's gift + 1/3 of Child B's gift = $4,000 + $2,000 = $6,000

The gift to A and B would be abated ratably, so A would receive $8,000 and B, $4,000.

Preventing Will Contests

Although children can be disinherited, it is generally not wise to do so, because it will probably cause the disinherited child to contest the will on various doctrines, such as fraud, duress, or lack of testamentary capacity, that allow the courts to alter the testator's distribution scheme. This is particularly true when the contestant is permitted a jury trial, since juries often side with the child. Because of the slow pace and expense of United States courts, it often take years and much money before a will contest is decided, which gives the will contestant a strong tool for extorting a benefit, since not only will the estate be diminished by legal fees of its own—and maybe even the legal fees of the contestant—and court costs, but beneficiaries will not receive their benefit until the issue is decided. Hence, the estate often settles with the contestant. (See Screw the Pooch: Leona's Pup Loses $10M of Trust Fund on how 2 disinherited grandchildren contested Leona Helmsley's will and won a tax-free $6,000,000 judgment plus their legal expenses. Unfortunately, because of the will contest and other alterations of Leona's testamentary scheme, Leona's pet pooch, Trouble, only got $2,000,000 instead of the $12,000,000 that Leona bequeathed him!)

While some legal methods can reduce the chance of will contests—including the use of living trusts, which are much harder to contest—will contests cannot be prevented. Probably the best way to prevent will contests is to explain to your descendants what they are getting and why, while you are still alive. Explanations will be more effective if you start explaining your testamentary scheme while the children are still young, so that it does not come as a surprise. Even if you do not know exactly how you want to distribute your property yet, at least explain what you consider to be important in deciding what the ultimate distribution scheme will be. For instance, many people, including wealthy people, believe that a child should not receive a large inheritance because it removes any ambition to achieve anything significant. As Warren Buffett has said about his own intentions, give the children enough to do anything they want, but not enough to do nothing.

If your beneficiaries understand your reasoning, they may be more accepting of it, and it may also prevent those who are getting less from directing any anger to those who are getting more.