Legal Rights of Children in Estate Planning

Sometimes, a parent dies leaving a will that was executed before the child was born, or the child was not even mentioned in the will. Does that "after-born" or "omitted" child receive anything? An after-born child refers to a child born after a will is drafted. An omitted child is referred to as any living child, (or the descendents of any deceased child), who has not been provided for in the will. Another example of an omitted child is one who has not been named in the will, even though they were alive when the will was written. Usually these children will receive something, the amount can vary from a small portion to a substantially large portion of the estate.

In most states, an after-born child is entitled to receive a share that he would have received if the parent had died without a will. However, there are a few exceptions:

1-the omission was intentional

2-the will left most of the estate to the surviving parent

3-the decedent had made some other provisions for the child.

Rights of Adopted Children

Many states estate laws treat adopted children in the same manner as natural children, so that an adopted child can inherit from his adoptive parents, as well as from their blood relatives. Similarly, the adoptive parents, and their blood relatives, can inherit from their adopted children.

Most states do not allow the biological parents of a child adopted by another parent to have any rights to inherit via intestate succession from their natural children. Adopted children usually have no rights of succession to any property interests from their biological parents.

Rights Of Illegitimate Children

Most states allow illegitimate children the same inheritance rights which are given to non-illegitimate children. They can inherit from their parents, and their parents can inherit from them.

Can You Disinherit A Child?

In many states, a decedent cannot disinherit a child unless there is a stated written intention to do so.

Many states have what is called "pretermitted heir statutes", which provides protection to a child who has been born after the will was drafted. "Pretermitted" refers to being "left out", or "omitted".

The pretermitted heir statutes are based on the premise that the decedent did not intend to disinherit his or her child, and that probably due to an oversight, did not revise his will to include any after-born or omitted children.

Only when there is a stated indication that the will maker intended to disinherit his child, can this provision take effect. Usually there would be language that would leave a minimal amount, of perhaps $1,000, or a statement containing specific language.

Go To Page: 1 2