A good will should address the issue of children who may be born or adopted after the document is finalized and make some provisions for them. But this ideal is sometimes not achieved. Each state has laws that prescribe what should happen if a child is born or adopted after a will is finalized, whether this happens before or after the testator dies. States differ in how they provide for this issue.
People make gifts to children identified as a group, as opposed to individuals identified by name, to ensure that if the group gets larger after the will is made, all group members will inherit.
For example, a grandfather may leave a gift to “my grandchildren.” He probably expects more grandchildren to be born after he has made his will but before he passes away and wants all of them to inherit. If he were to name the grandchildren he has when the will is made, he would have to modify his will every time another grandchild was born.
The law recognizes this and allows people to bequeath their estate to a group or a portion of it. And the law further allows members of the group born after the will was made but before the testator passes away to be considered part of the group and to inherit as provided by the will for the group.
Children born after the testator parent, or grandparent, has passed away are usually not included in the group unless the testator parent clearly expresses the intention to include them. The child has to have been conceived before the testator parent passes away to be included in a group that inherits under a will.
What If a Child Is Conceived Using ART after the Testator Parent’s Death?
In some states, an exception exists for a child conceived using assisted reproductive technology (ART) after a testator parent’s death.
States have very different approaches to this issue. Some states allow children in utero within three years of the testator parent’s death or born within 45 months of their death to inherit.
Other states do not allow children conceived after the testator parent’s death to inherit as children of the testator parent. And some states have not written laws to address the issue at all.
As for children born through ART, other estate planning issues might arise, such as whether surrogacy affects who is considered a parent and what happens to stored genetic material when a person dies. Usually, if a birth involves surrogacy, this does not affect who is considered a parent. If a person is pursuing ART, they want to consult an estate planning attorney in their state for guidance on making the necessary and appropriate provisions in their will.
In some states, e.g., Tennessee, if a child is born after the testator makes their will, whether before or after the testator dies, the child inherits the same portion of the testator’s estate as they would if the testator had died without a will or “intestate” in legal terminology.
Other outcomes are possible. A testator parent can disinherit a child. This is usually stated explicitly in a will or should be. Or the testator may make a settlement with the child or for the child instead of providing for them in a will.
However, if the will was written before the testator had children and the testator made no provision in the will for a child or children, then a court may, in effect, change the will to ensure that the child is not excluded unfairly.
In most states, the court changes the will only to the extent necessary 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.
In other states, however, the law provides that the will is considered totally void once a child is born after a testator parent’s will has been made. The testator’s entire estate would pass under intestacy laws in this case.
What Happens to a Child Omitted from a Will in California?
If a parent creates their will before their child is born or adopted, the child is considered an “omitted child” under California law. An omitted child in California has the right to receive an inheritance from the parent’s estate unless one of the three following conditions are met:
- The parent intentionally leaves the child out of the will. Again, California law honors a parent’s intention to disinherit a child. But the parent must express the intention to disinherit the child in the will or some other testamentary document. For example, in a will or codicil to a will, the parent can explicitly state their intention, e.g., “I intend not to leave any property to my child, X;”
- The testator parent can effectively bequeath their entire estate to the other child’s parent who has been omitted. If there is one child or more children of the marriage, and the deceased parent drafts a will that leaves all or nearly all of their estate to the other parent, then the law presumes that the deceased parent intended to benefit the children through the other parent, rather than making direct distributions to the children;
- The parent makes provision for the omitted child outside of the will. If the parent provided for the omitted child in certain other ways, and there is evidence to indicate that this is the case, it may be enough to prevent the child from inheriting under the will. The testator parent might make a large monetary gift to the child during their lifetime, make the child the beneficiary of a life insurance policy, or make the child the beneficiary of some other transfer, e.g., a 401K account.
If this has been done and there is evidence to indicate this was done in lieu of the will, this may also be enough to prevent the child from inheriting under the will. In part, the evidence of the intent not to provide for the child through the will could be the size of the alternative transfer.
If none of those three conditions are met, then the omitted child should receive the share they would receive if the testator parent died without a will. What a child receives in intestacy is based on whether the deceased has other surviving children, parents, siblings, or a spouse.
Again, each state is different and may have laws that differ greatly from those in California.
What If the Testator Adopts a Child after Writing a Will?
As with so many areas of the law, states differ in dealing with this issue. Some states 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 also void a will.
Generally, a child who a testator parent has formally adopted is considered one of the children of the testator parent. The adopted child shares equally in an inheritance bequeathed to the testator’s children. So if a testator parent’s will leaves a bequest to “my children,” the group includes adopted children unless the will says otherwise.
Even if the testator parent dies before the adoption process has been completed, a few states also allow an adopted child to inherit as a member of the class of “children” in a will.
How Can a Lawyer Help Me?
If you drafted a will before conceiving or adopting a child, you should contact a will lawyer. An attorney specializing in wills and estate planning can inform you about laws in your state. The lawyer can advise you as to whether your will is adequate to address the right to inherit the new child or whether the will should be modified to ensure that it achieves the goals you want to achieve.
If you are the biological or adopted child of a deceased parent who failed to include you in their prior will, again a will lawyer can help you recover any inheritance to which you may be entitled.