When writing a Will, sometimes heirs who are unknown to the testator during the time of drafting are unintentionally left out, or there was an error by estate planners in the drafting of the Will. In this situation, a potential beneficiary could lose out on valuable assets, including but not limited to, real estate of which they may have a right to inherit such as the family home or vacation home that has been in the family for generations.
For example, it is not uncommon for a testator to execute a will, then have minor children afterwards, whether through natural birth or adoption, and then those additional family members are not included in the original estate plan. Different states have different statutes on how to treat unnamed/unknown heirs.
Below is a brief overview to demonstrate of how unintentional omitted heirs may be treated following their loved ones passing depending on which state law applies and what is contained in the legal documents that make up their estate plan traditionally in the form of a Last Will & Testament:
Virginia offers three statutes dealing with omitted heirs in three situations, as well as a rule regarding spouses omitted from legal estate planning documents.
First, when a testator executes a will before having any children and a child is born thereafter, Virginia statute provides that said child is to receive the same portion of the testator’s estate as if they had died intestate, or in other words, without a will. Va. Code Ann. § 64.2-419.
Second, when a testator with children executes a will and another child is born after the will is executed and is unintentionally omitted, said child is entitled to the lesser of either (1) the share of the other child(ren) not omitted in the will or (2) the same share that the child would receive if the testator died intestate. Va. Code Ann. § 64.2-420.
Third, when a testator dies, and relatives who were conceived before the testator’s death are born thereafter, they are entitled to the same amount of the estate as if they had been born during the testator’s lifetime. The same applies to children born through assisted conception after the testator’s death, and determined to be the testator’s relatives. VA Code Ann. § 64.2-204.
Finally, regarding omitted spouses, the process is fairly straightforward. The omitted spouse, who must have married the testator after execution of the will, shall receive the same share of the estate that they would have received had the testator died without a will, unless the testator intentionally omitted them. VA Code Ann. § 64.2-422.
Maryland provides two main statutes dealing with the topic of unknown or omitted heirs, and takes similar stances to Virginia, with some extra qualifications.
For a child who is born after the testator’s will has been executed, four criteria must be met in order for them to be able to claim part of the testator’s estate. They are (1) that the will does not have a provision for children born after the will’s execution, (2) the child in question is born, adopted, or legitimized after the will’s execution, (3) that child (or their children) survives the testator, and (4) the will does not explicitly state that the child or their children should be excluded. MD Code, Estates and Trusts, § 3-301.
Omitted/unknown children play a role in revoking wills as well. If a testator marries after execution of a will, then subsequently gives birth, adopts, or legitimizes a child who survives them, all wills that were executed before the marriage are revoked. Md. Code Ann., Est. & Trusts § 4-105.
New Jersey provides one main statute that covers two scenarios regarding omitted/unknown children, similarly to Maryland, with again similar stances to Virginia. Under the first scenario, if the testator did not have any children when they executed their will, that omitted after-born or after-adopted child will receive a share of the estate as if the testator had died intestate, unless the will specifically distributed all or a substantial amount of the estate to another party (such as the other parent or a trust). N.J. Stat. Ann. § 3B:5-16.
Under the second scenario, if the testator had one or more children living when the will was executed, and an omitted child enters the picture, the situation is more complicated when it comes to distribution of the estate. After-born or after-adopted children are entitled to a share of the estate as follows: (1) the share is limited to the amount the current living children are entitled to, (2) the share is what the omitted child would have received if the testator had included them in the will and had given them an equal share along with the current living child(ren), (3) the share has to be of the same character as the share(s) given to the existing child(ren), and finally (4) when distributing the shares among the current living child(ren) and the omitted child, the court will try and preserve the testator’s plan as best as possible. N.J. Stat. Ann. § 3B:5-16.
The general rule for omission applies, so if the omission was intentional, the above elements do not apply. The elements also do not apply if the testator provided for an omitted after-born or after-adopted child by a transfer outside of the executed will, with the intent that the transfer be made in place of a provision in the will. N.J. Stat. Ann. § 3B:5-16.
In case of unintentional omissions due to a mistaken belief that the omitted child is dead, the child is entitled to the same portion of the estate as they would have received had they been an omitted after-born or after-adopted child. N.J. Stat. Ann. § 3B:5-16.
New York takes a slightly more conservative stance. If a testator has one or more children after executing his last will, and no provision is made in the will for the omitted after-born or after-adopted child, then the child does not receive any share of the estate. N.Y. Est. Powers & Trusts Law § 5-3.2.
If the testator does not have any children living when the last will is executed, the omitted after-born or after-adopted child is entitled to the portion of the estate as if the testator had died intestate.
If there is a provision for the after-born or after-adopted child(ren), then they are entitled to a share of the estate. New York provides three qualifications for the share, similar to the other states: (1) the omitted child is entitled to the same share as children listed in the will; (2) as if they had been included in the will; (3) with the share being of the same character as the named children’s’ share. If the will contains a provision that shows the testator’s intention to apply it only to children living at the time of the will’s execution, then the omitted child succeeds to that portion of the estate, as it would have passed had the testator died without a will. N.Y. Est. Powers & Trusts Law § 5-3.2.
Florida’s rule on omitted children is fairly straightforward as the planning process goes. As with other states listed, if a child born or adopted after the testator makes the will is omitted, said child will receive a portion of the estate equal to what the child would have received had the testator died intestate. Two exceptions apply, the first being the standard intention omission rule discussed in previous states. The second is that if the testator had one or more children when the will was executed, and the will devised (the legal term for distributing the estate) basically all of the estate to the parent of the omitted child, and that parent survived the testator, then that parent is entitled to that portion. Fla. Stat. Ann. § 732.302.
District of Columbia
While Washington D.C. remains one of two states (Wyoming being the other) to lack any statutes regarding omitted children/heirs, there is but one court case that deals with the matter. In 2006, the Superior Court of the District of Columbia heard In re Est. of Johnson, in which an omitted child’s sister brought suit against the family of the deceased testator, claiming that the omitted child was related to the testator, and therefore mistakenly omitted from the will. The crux of the matter as relevant to this article was whether or not the fact that the omitted child was related to the testator would revoke the testator’s will, similar to the rule in Maryland. The court answered “yes” to this question, and held that where the testator executes his will before the birth of a child, and the child is subsequently born to the testator, even out of wedlock, and if the will does not show any intent to disinherit the child, the will is revoked. The estate is then treated as though the testator died without a will.
While these states differ slightly on how they organize and provide for omitted children/heirs and others in wills, they follow a very similar framework. Still, some states have consequences for failing to provide for omitted children, while others allow them to be rolled into the existing will. The biggest takeaway for those who want to ensure that their Last Will & Testament or Revocable Living Trusts devise their estate seamlessly is to simply provide contingencies in the event of an omitted person coming into the picture. A seasoned estate planning attorney, well-versed in the particulars of estate law, should be suited to the task. An experienced estate planning attorney can help you properly craft an estate plan to best avoid probate court through a living trust. However, in the event that estate litigation is required, the estate planning attorneys at the law firm of General Counsel, P.C. have experience in a wide array of estate and trust litigation disputes and can assist you no matter what side of the dispute you are on, or to simply advise about the probate process.
We would welcome the opportunity to help you navigate the complex estate planning and protect your interests through estate process whether you are a testator, trustee, or an omitted heir or beneficiary, Consider contacting us today at 571-396-8460, email firstname.lastname@example.org, or if you’re ready to commit to protecting yourself and your loved ones, schedule an appointment to have a conversation about how we can help!