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How a Baby Can Upset an Estate Plan

If you are a parent, you probably already know how a baby can change your life. But what you may not know is how the birth or adoption of a child can radically upset an estate plan.

What is a pretermitted child?

A child who is born after someone makes a will but before the will-maker (legally known as the testator) dies, is called pretermitted. That child is generally entitled to a share of the deceased’s estate. This may be true even if the testator has made a will leaving everything to charity, or to other family members or friends. It is true even if the child is a non-marital child.

More precisely, a pretermitted child is:

  • Born after the execution (signing and witnessing) of the testator’s last will AND
  • Not provided for by any settlement (for example, a trust or life insurance policy) AND
  • Not provided for or in any way mentioned in the will

How much does a pretermitted child receive?

The precise share the pretermitted child receives depends on two things:

  • Whether the testator had other children alive when the will was made AND
  • How much those other children received

If there were no other children alive when the will was made, the pretermitted child receives the same amount the child would have received if there had been no will at all — in some cases, that could be the entire estate! In other cases, it is a fraction of the estate and comes from other beneficiaries. What the pretermitted child receives in this situation is based on what the other beneficiaries inherited.

If the testator had other living children, then whether the pretermitted child gets anything — or how much they get — depends on what the other children receive. Essentially, the pretermitted child is treated in the same way as the children who were included in the will.

If no child receives anything, the pretermitted child also receives nothing

  • If any child receives anything, the pretermitted child gets an equal share of that gift (for example, a share of the money outright or in trust)

Calculating the pretermitted child’s precise share can be complicated, and an unprovided-for child can potentially radically upset a careful plan you had in place for years. Contact a New York estate administration attorney if you feel the time is right to update your estate plan.

Anthony Lamberti on G+

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