Pretermitted Heir - Rights of A Pretermitted Child

Rights of A Pretermitted Child

Many jurisdictions have enacted statutes that permit a pretermitted child to demand an inheritance under the will. Some allow the child to claim their intestate share, while others limit the inheritance to an amount that is comparable to devises made in the will for the children who were alive when the will was written. This may be accomplished by proportionally reducing the gift under the will to the other children, or by reducing gifts under the will to non-family members. An exception common to many jurisdictions prohibits a pretermitted child from claiming an inheritance if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child.

Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made. This may be because the child was incorrectly believed to be dead, or was later adopted by the testator.

A will may contain a clause, however, which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. A pretermitted heir may also be denied the right to take under the will if they received an advancement against their inheritance - an inter vivos gift from the testator of an amount equivalent to what the pretermitted child might take under the will.