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Can a child be unintentionally excluded from a parent’s revocable trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

In Florida, and many other states, there are protections written into the probate code which purport to protect children from unintentional disinheritance by one or both of their parents. Florida’s pretermitted child statute is codified at Fla. Stat. §732.302 and is intended avoid an unintentional or inadvertent disinheritance of a child. Florida’s statute is modeled in part after the position adopted by the Restatement of Property and the Uniform Probate Code.

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.

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