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PRETERMITTED OR OMITTED CHILDREN NOT ADDRESSED IN A WILL

Contrary to the European model, American parents are legally free to disinherit their children, but at the same time, they cannot simply forget or omit their children in their will by mistake. If the child is specifically addressed in the will and, at the same time, the will either fails to pass any property or assets on the child or specifically disinherits the child, there is nothing that the child can do to inherit something from the estate, aside from invalidating the will and potentially inheriting under the intestacy statutes. Children born after a will is created and not properly addressed in the will, via language that is expansive and inclusive that undoubtedly includes even children born or adopted after the specific will is created are referred to in the law by the ungainly term pretermitted children.

 

Not surprisingly it comes from a latin verb meaning to overlook or forget. New York’s law that addresses pretermitted children and found at NY EPTL §5-3.2, only addresses children born after the creation of a last will and not otherwise provided for by other means, such as life insurance proceeds, a trust or other assets. The children that fall under the pretermitted law protections are entitled to whatever the other children who are addressed in last will. Oddly enough, if the children born before the creation of the will are mentioned but unprovided for, the pretermitted child will not inherit anything. Indeed, the law specifically addresses this possibility, insofar as it indicates that “(1) If the testator has one or more children living when he executes his last will, and: (A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator’s estate.” NY EPTL §5-3.2. Certainly there are many problems with this, insofar as some parents specifically disinherit their children. Anna Nicole Smith disinherited her son in her last will and then had a baby daughter only a short time prior to her passing away, without any change in her will.

 

RATHER COMMON PROBLEM WITH SIMPLE SOLUTION

 

It is a rather common scenario for a person to create a will, forget about it and move on with life by having kids, buying a house, investing in a retirement account and growing their assets. A number of celebrities left these problems in their wake by their failure to properly plan.

 

This blog reported on the problems with Philip Seymour Hoffman and Paul Walker in the past. Heath Ledger was another famous celebrity with similar issues. Fortunately for Mr. Ledger’s daughter, Matilda, she had a very altruistic family. Mr. Ledger’s family clearly live the adage that just because you can do something does not mean you should do it. There are many people, however, who would handle things differently, even if they were still altruistic, in that they would perhaps create a trust wherein they are the trustee or somehow or another exert control over the money. The remedy to all of these issues is simple and obvious, have an experienced estate planning attorney review all of your estate documents to insure that there is a coherent plan and the legal documents properly effectuate these plans. Furthermore, it is best to review these documents on a periodic basis in light of major, life changing events, such as marriage, divorce, the birth of children or grandchildren, et cetera.  

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