Pretermitted Heir

• Author: Jeffrey Lehman, Shirelle Phelps

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A child or other descendent omitted from the will of a testator.

Modern laws concerning the inheritance of property attempt to protect the rightful heirs. A pretermitted heir is a child or descendant of the

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testator?the maker of a will?who has unintentionally been omitted from the will. States have enacted "pretermitted heir statutes" that protect these heirs.

The presumption of these statutes is that the testator must expressly disinherit a child or descendant in his or her will. This presumption dates back to early ROMAN LAW. If the will does not specify intention to disinherit, the law will presume that the omission of the child or descendant was unintentional. These statutes authorize the child or descendant to take the same share of the estate that he or she would have taken if the testator had died intestate, without a will. All states have fixed, objective rules for dividing property when a person dies without a will, which apply to the division of an estate for pretermitted heirs.

A pretermitted heir must be a child or descendant either living at the date of the execution of the will or born thereafter. For example, if John executes a will and his son Bob is born a week later, Bob will be considered a pretermitted heir unless John changes his will to expressly disinherit Bob. If Bob has a child and dies before John, at John's death the grandchild will share in John's estate, because he or she will take Bob's share.

Some states have specific laws that deal with a child born after the making...