There’s nothing like a pretermitted child to disrupt an otherwise perfectly good estate plan.
In Texas, a “pretermitted child” is one that is born to or adopted by you after you execute your will. A pretermitted child gets special consideration under the law.
Most well-drafted wills anticipate a pretermitted child. Such wills may read “the term “children” includes not only the foregoing children but also any other child born to or adopted by me in the future.” A will might also contain a definition of “descendants” that includes an after-born or adopted child.
Unfortunately, a lot of people don’t have well-drafted wills. This column is for those who download a “will” form off the internet, draft their own will, have their will drafted by an attorney not well-versed in estate planning, have a will drafted in another state, or do not update their will after the birth or adoption of a child. It is also for those whose spouse falls into one of the foregoing categories.
What You Need to Know About Pretermitted Child Laws
If that describes you, then you need to worry about the pretermitted child laws. They are a bit complicated, but the gist is that the pretermitted child gets an unanticipated share of your estate after your death. I’ve set out a few examples.
First example: You and Betty are married with two children. You sign a will leaving everything to Betty. Then you secretly have an affair with another woman who gives birth to your third child. Under the pretermitted child laws, when you die that third child, who is pretermitted, inherits one-third of your estate.
Just imagine Betty’s surprise.
Second example: You and Betty are married with two children. You sign a will leaving $200,000 to your two children and giving everything else to Betty. Then you have an affair with another woman who gives birth to a pretermitted child. Under the law, when you die your pretermitted child will be given an equal share of the $200,000. The idea is that your pretermitted child will get the same inheritance as your other children.
Third example: You are married to Betty but have no children. You sign your will. Then you have an affair with another woman who gives birth to your pretermitted child. When you die, your pretermitted child will receive ½ of your estate. Normally your pretermitted child would get all your estate, but the law protects Betty, as your surviving spouse, and limits the amount her share can be cut.
Final example: You are not married. You sign your will leaving money to charities and friends. Then you have a child. When you die, your pretermitted child will receive all your estate, completely cutting out the charities and your friends.
What can you do to avoid these results?
Have a well-drafted will that addresses the possibility of a pretermitted child. Even if you are 80 years old when you sign your will, do not omit these clauses. Remember, an adoption can happen informally, and the adoptive parent can be any age.
Review your estate plan when a child is born to you or adopted. At a minimum, you may want to re-execute your will.
Make other provisions for your pretermitted child that will take effect upon your death. This causes a pretermitted child to lose statutory protection. One strategy is to name the child as beneficiary of your life insurance policy.
One final note: the pretermitted statute applies only between a child and parents. It does not apply to grandparents.
Hammerle Finley Can Help With Your Estate Planning Needs
Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact firstname.lastname@example.org to receive her firm’s newsletter.