Status of a Will after Childbirth or Adoption

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Is a Will Changed or Considered Void after the Birth of a Child?

In some cases, yes. Generally, if a will is written before the testator who created the will has children, the subsequent birth of child may allow the court to change the terms of the will in order to ensure that the child is not unfairly excluded simply because the testator did not know that they would exist when the will was created. In most instances, the court will alter the will just enough to give the child their intestate share of the testator's estate, which is the portion of the testator's personal and real property that the child would have gotten if there had been no will at all. Some state laws even provide that, once a child is born, the previous will is considered totally void.

Why Do Courts Void or Alter Wills?

Courts do not like the timely and costly process of probate, which occurs when a will must be carried out.  The birth of a child gives the testator an identifiable heir who can automatically gain possession of the testator's property when they die, avoiding probate altogether. Therefore, changing or voiding a will upon childbirth allows a court to avoid the time and resources it would otherwise have to spend undergoing probate.

What If the Testator Adopts a Child after the Creation of a Will?

It depends on the applicable state law, since the states are split on this issue. Some states and courts consider adopted children to have the same exact status as biological children. In this case, if state law allows the birth of a child to void a will, then adopting a child would have the same effect. However, other states will not give adopted children equal status to biological children. These states usually require that separate laws be made that specifically allow adoption to void or alter a will.

How Can a Lawyer Help Me?

If you have drafted a will prior to conceiving or adopting a child, you should contact an estate lawyer. An attorney specializing in estates and wills can inform you about laws in your state, and whether the birth or adoption of a child affects your will. If you are the biological or adoptive child of a deceased parent, who failed to include you in their prior will, a lawyer can also help you recover any claims you may have on your deceased parent's estate.

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Last Modified: 01-22-2015 10:15 AM PST

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