Pretermitted heir
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Pretermitted Heir
This entry contains information applicable to United States law only.
A child or other descendent omitted from the will of a testator.
Modern laws concerning the inheritance of property attempt to protect the rightful heirs. A pretermitted heir is a child or descendant of the testator — the maker of a will — who has unintentionally been omitted from the will. States have enacted "pretermitted heir statutes" that protect these heirs.
The presumption of these statutes is that the testator must expressly disinherit a child or descendant in his or her will. This presumption dates back to early Roman law. If the will does not specify intention to disinherit, the law will presume that the omission of the child or descendant was unintentional. These statutes authorize the child or descendant to take the same share of the estate that he or she would have taken if the testator had died intestate, without a will. All states have fixed, objective rules for dividing property when a person dies without a will, which apply to the division of an estate for pretermitted heirs.
A pretermitted heir must be a child or descendant either living at the date of the execution of the will or born thereafter. For example, if John executes a will and his son Bob is born a week later, Bob will be considered a pretermitted heir unless John changes his will to expressly disinherit Bob. If Bob has a child and dies before John, at John's death the grandchild will share in John's estate, because he or she will take Bob's share.
Some states have specific laws that deal with a child born after the making of a will. These after-born heir statutes are similar to pretermitted heir provisions. The presumption is that an after-born child does not revoke a will but has the effect of modifying it.
Louisiana and Puerto Rico protect children and descendants in a different way. These jurisdictions, which come from a civil-law rather than a common-law tradition, grant heirs an indefeasible share. This share is a certain portion of the estate, usually expressed in a fixed dollar amount, and a percentage of the decedent's estate.
See: descent and distribution.
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Pretermitted heir
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A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know, or did not know of, the party at the time the will was written. The most common category of pretermitted heir is the pretermitted child, born after the execution of the will.
Rights of a pretermitted child
Many jurisdictions have enacted statutes that permit a pretermitted child to demand an inheritance under the will. Some allow the child to claim their intestate share, while others limit the inheritance to an amount that is comparable to devises made in the will for the children who were alive when the will was written. This may be accomplished by proportionally reducing the gift under the will to the other children, or by reducing gifts under the will to non-family members. An exception common to many jurisdictions prohibits a pretermitted child from claiming an inheritance if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child.
Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made. This may be because the child was incorrectly believed to be dead, or was later adopted by the testator.
A will may contain a clause, however, which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. A pretermitted heir may also be denied the right to take under the will if they received an advancement against their inheritance - an inter vivos gift from the testator of an amount equivalent to what the pretermitted child might take under the will.
Pretermitted spouse
Another party for whom the state might provide is the pretermitted spouse, whom the testator does not marry until after the execution of the will. Many jurisdictions provide that a pretermitted spouse will receive either her intestate share (what she would have received had the testator died with no will), or the elective share (a set amount or formula provided by law for spouses who are disinherited in the will).
Like a pretermitted child, a pretermitted spouse may be explicitly disinherited in the will, or may be excluded from taking under the will if they received an advancement on their inheritance in anticipation of the marriage. A pretermitted spouse may also disclaim any interest in the testator's estate through an antenuptial or prenuptial agreement.
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West's Encyclopedia of American Law
West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved.
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