The Restatement of Property provides:

§ 9.6 Protection Of Child Or Descendant Against Unintentional Disinheritance

(a) A child of the testator, or under some statutes a descendant of the testator, who was not provided for in the testator’s will may be entitled to a specified share of the testator’s estate as provided by statute. Most of the statutes, including the Original and Revised Uniform Probate Code, only protect a child who was born or adopted after the will was executed.

(b) A child of the testator who was not provided for in the testator’s will because the testator thought that the child was dead may be entitled to a specified share of the testator’s estate as provided by statute.

(c) The omitted child or descendant is entitled to the specified share unless a contrary intent or other statutory exception is established.

Similarly, the Uniform Probate Code at §2-302 provides that if a testator’s will fails to provide for a child born or adopted after the execution of the will, the omitted afterborn or after-adopted child receives a share in the net probate estate that depends on whether or not the testator had children living when the will was executed and, if so, whether the will made a devise to any of the then-living children.

Can the omitted child take an intestate share from assets passing outside the estate? The Uniform Probate Code provides that a child who is left out of a will cannot claim an intestate share if the testator provided for the omitted after-born or after-adopted child by transfer outside the will with the intent that the transfer be in lieu of a testamentary provision. This intent must be shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence. (Florida did not adopt this portion of the Uniform Probate Code).

The absence of clarity in this area of the law has resulted in some strange results in litigation and appeals and one recent case illustrates that Court’s will not always interpret the law in order to achieve a result that protects children. The case of In re Estate of Jackson, 194 P.3d 1269 (Okla. 2008) involved Oklahoma’s application of its pretermitted child statute.

Like Florida’s statute, Oklahoma’s pretermitted heir statute provides an intestate share for a child of a testator omitted from the testator’s will “unless it appears that such omission was intention.” In Jackson, Plaintiff, Benjamin Jackson, was determined to be the testator’s son who died without a will. Instead, Benjamin’s father had done some estate planning which combined his assets into a revocable inter vivos trust established with his wife, who predeceased him. Consequently, Benjamin brought probate proceeding against the co-trustees of the trust sought a determination that he was Jackson’s pretermitted heir and entitled to all the trust’s assets. The Oklahoma Supreme Court afforded no protection to the child by holding carte blanche that the statute doesn’t apply trusts:

“The pretermitted heir statute provides that when any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section. This provision unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts.”

Why the Oklahoma Supreme Court could not follow the spirit of the law and to interpret it in a manner that affords protection for children inadvertently omitted from their parents’ trust is confusing. Hopefully, this judicial conservatism will serve as a catalyst for states to modify their probate codes to expand the reach of the pretermitted child statutes to include trusts.

What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will. Fla.Stat. §732.302.

One court has stated that the purpose of the pretermitted child statute is to avoid an unintentional or inadvertent disinheritance of a child; accordingly, only children physically born or adopted after the execution of a Will are to be considered pretermitted children under the statute. See J.E.W. v. Estate of Doe, 443 So.2d 249 (Fla. 1st DCA 1983).

Can Adopted Children Be Pretermitted Heirs?

Many states, including Florida, have enacted probate codes that provide that when a testator omits to provide by Will for any of his or her children adopted after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional; or the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will.

An Interesting Case from Oklahoma

I recently read a very interesting appellate opinion out of Oklahoma where the court held that the express exclusion of one child does not prevent unmentioned children from taking as pretermitted children. In re Estate of Livsey, 183 P.3d 1038 (Okla.Civ.App.2008) presents a good example of the analysis involved in cases dealing with the issue of pretermitted children in the probate context. In this probate case, Billie Sue Coody, Carolyn Livsey, and Beatrice Livsey, the natural children of Louis T. Livsey, deceased (Decedent), filed a lawsuit in the probate court after their father’s death. At issue was Article II of Decedent’s Last Will and Testament:

I hereby declare that I am divorced and have not remarried. I have one and only one child, a son named Larry Wayne Livsey. I have four living brothers and one living sister, namely Carl Livsey, Robert Livsey, Roy Livsey, Clarence Livsey and Estell Grecian.

Article IV of the Will stated as follows:

I specifically state that it is my intention to exclude my son, namely Larry Wayne Livsey, from taking anything under this my Last Will and Testament. Nor do I desire that any of my brothers or sisters take anything under this my Last Will and Testament.

Under Article III of the Will, Decedent bequeathed and devised his entire estate to his long-time friends, Daniel R. Wood, Special Administrator, and Daniel’s wife, Charlotte A. Wood. The Administrator filed a petition for administration in the probate court setting forth that Decedent has six children. The children objected to the proposed distribution of the entire estate to Daniel Wood and his wife. The children argued that Decedent’s Will did not contain language evidencing his intent to exclude his five other unnamed children from inheriting; therefore, contestants were entitled to an intestate share of their father’s estate pursuant to Oklahoma’s probate code (similar to Florida’s probate code). The probate court disagreed with the children’s claim and ordered that the entire estate be distributed to Daniel Wood and his wife. The children appealed and the case worked its way through the state appellate court system. The Oklahoma appeals court noted that it was undisputed that Decedent misrepresented the number of his children in his Will. It was likewise uncontroverted that Larry and Decedent’s siblings were specifically mentioned and excluded from inheriting, but nowhere in the Will were the five other children mentioned by class or individually. Contestants claim Decedent clearly knew how to disinherit some of his heirs, but chose not to utilize this same method to exclude his five other children from their inheritance rights; therefore, the Court found that Decedent’s omission of his five other children was obviously unintentional.

Daniel Wood and his wife argued that Decedent was quite estranged from his entire family and intended that no sibling or child inherit from his estate. Mr. and Mrs. Wood further argued that by stating “I have one and only one child” in his Will – even though this statement was incorrect – Decedent clearly and affirmatively stated his intent to exclude all his children, individually and as a class, from inheriting. Appellee further argues Decedent’s complete disposition of his estate to Appellee and Appellee’s wife, as provided in Article III, further evidenced Decedent’s intent to fully disinherit all of his children.

The Court then noted that the purpose of the pretermitted child statute in the state probate code is to protect an issue’s right to take unless the Will itself gives a clear expression of an intentional omission. The court then looked to state court precedent which had consistently held the determination as to whether the testator’s omission to provide for his child was intentional must be made from the four corners of the Will and such intent to disinherit must appear in strong and convincing language. To effectively exclude an heir, that heir must be mentioned in the Will either by name or class. Simply leaving the entire estate to others is not alone sufficient to show intent to omit a child.

After reviewing the record, the court held that Decedent’s Will did not contain the requisite strong and convincing language to evidence Decedent’s intent to exclude his other five children from inheriting. Decedent’s exclusive listing of only one of his six children without mentioning the other children by name or by class simply did not evince, in strong and convincing language, Decedent’s intent to disinherit his five other children. Therefore, the court held that because the children’s omission from Decedent’s will appeared to be unintentional, they were entitled to share in Decedent’s estate as if Decedent died intestate.

I have found in my practice that courts are reluctant to apply and interpret the law in a manner that results in an unnatural disposition of probate assets. This Oklahoma case is no exception.