Chapter 12.3 Omitted Children, Spouses, and Domestic Partners; and the Effect of Separation and Dissolution

• Jurisdiction: Washington

§12.3 OMITTED CHILDREN, SPOUSES, AND DOMESTIC PARTNERS; AND THE EFFECT OF SEPARATION AND DISSOLUTION

This section discusses the effect of omission of children, spouses, and domestic partners, and of termination of marriage and domestic partnership, on wills and nonprobate dispositions.

(1) Omitted child

RCW 11.12.091(1) protects against the unintentional omission of a child from a will by providing that if a will fails to name or provide for a child of the decedent who was born or adopted after the execution of the will and who survives the decedent, the child will receive an intestate share of the estate, unless it appears that the omission was intentional.

(a) Statutory details

RCW 11.12.091 expressly applies only to children born or adopted after the execution of the will and protects an after-born or adopted child if the will fails to "name or provide for" the child. The statute provides that a child is deemed "named" in the will if the will specifically names the child (whether or not the child is identified as a child of the trustor) or refers to a class described as the children, descendants, or issue of the decedent born after the will's execution. Thus, a will stating "I disinherit all my children," would not disinherit afterborn children, but a will stating, "I disinherit all my children, born before or after execution of this will," would.

Furthermore, RCW 11.12.091(2)(c) provides that in determining whether an omitted child has been named or provided for, an omitted child receiving merely a "nominal interest" under the will is not named or provided for within the meaning of the statute.

RCW 11.12.091(1) expressly provides that it does not apply if there is clear and convincing evidence, either within the will or extrinsic to it, that the omission of the child was intentional. Similarly, although RCW 11.12.091(3) grants an omitted child the share of the estate the child would have taken had the decedent died intestate, a smaller share (or even no share) may be granted if there is clear and convincing evidence that this would be "more in keeping with the decedent's intent." The court is directed to consider such things as the dispositive scheme, provisions for the child outside the will, and provisions for the child's other parent. Thus, presumably a child omitted from a will that left everything to a revocable living trust could not take advantage of the

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statute if the trust specifically referred to after-born children. Similarly, an omitted child's share is likely to be reduced or eliminated when the will leaves the estate to the child's other parent.

As mentioned above, if the statute applies, the omitted child is entitled to his or her intestate share of the estate under RCW 11.04.015. Under the intestate statute, children share the estate equally unless there is a surviving spouse, in which case the children are entitled to share only one-half of any separate property and none of the community property.

RCW 11.12.091(1) also provides that the omitted child must survive the testator to be entitled to his or her intestate share. The statute does not protect the estate or the descendants of a child born after the execution of the will who then predeceases the decedent.

If the statute applies, bequests under the will abate as provided in Chapter 11.10 RCW. RCW 11.12.091(4).

(b) Children born before the will is signed

RCW 11.12.091 does not deal with a child who was alive or adopted, but nevertheless omitted, when the will was executed. Prior to enactment of the present statute in 1994, the predecessor statute dealing with pretermitted children did not distinguish between children born before or after execution of the will.

(c) Practical effect

Although RCW 11.12.091 and its predecessors have been the subject of a number of appellate decisions, as a practical matter, the need to refer to the statute will almost always be the result of poor drafting. The prevailing practice is to provide for the decedent's children and to define children as including those born or adopted after the execution of the will. Most clients would want to provide for unborn children in the same manner as those living at the time the will is executed. When there is an intention to disinherit a child, the prevailing practice is to do so expressly and unambiguously.

It is also common practice to include language the intention of which is to avoid the statute altogether: "Except as expressly provided elsewhere in this will, I make no provision for any of my children whether born or adopted before or after execution of this will." However, that language may have unintended consequences if the will provides for children by name rather than by class. If the will leaves the estate to "Tom, Dick, and Harry," and Sally is born after the will is signed,

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then the caveat in the statute rendering it inapplicable if it appears that the omission of an after-born child was intentional would deprive Sally of the statute's protection. Such language serves no legitimate purpose if it is assumed that most clients would want to provide for unanticipated, after-born children.

(d) Revocable living trust

RCW 11.12.091 applies strictly to an omitted child under the terms of the decedent's will. The statute has not been extended to distributions under a revocable living trust, a common will substitute. See Chapter 11.103 RCW.

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