It is possible that a testator forgets to update his or her will after either having or adopting a child. Without a revision of the will that child will not be provided for under the will. Probate law has developed to protect children from such omissions. There can be no unintentional disinheritance. Here is the most basic point I want to emphasize in this post: a child who is accidentally omitted from a will still receives a share of the probate estate through unique applications of the state’s intestacy laws. What exactly the omitted child receives depends on other circumstances, such as:
- If the will was executed at a time when the testator had no children, then the omitted child receives the same share he or she would have received under the state’s intestacy laws. As stated in a previous post, most state’s intestacy laws give priority to a surviving spouse before a surviving child, so if there is a surviving spouse the omitted child would still receive nothing;
- If the will was executed at a time when the testator did have living children, then the omitted child would receive a share equal to the that of all the decedent’s children had all the decedent’s children been included in the will and provided for equally.
The goal of these intestacy statutes is to place the omitted child in a position equal to that of the other children provided for under the will. To further emphasize this point, omitted children are to receive, not just an equal value as the other children, but a share of substantially the same type of property or interest in property as the other children provided for in the will.
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