OMITTED AND AFTERBORN CHILDREN

Does a child born or adopted into a family after a parent creates a Last Will and Testament receive a share of the estate of their parent? Or is it seen as an intentional act that the testator (the person who made the Will) did not update his or her Will after a child has been added to the family?

In New Jersey, public policy is guided by the belief that most parents would not intentionally disinherit a child. Therefore, an omitted child (one who was not included in the Will or was born or adopted after the testator created his or her Will) generally may receive a portion of their parent’s estate. However, whether that omitted child receives a share and the size of the share depends on a number of factors.

When Does an Omitted Child Take a Share of a Parent’s Estate? N.J.S.A. §3B:5-16 provides information for a number of scenarios:

If the testator had no child living when the Will was executed.

If there were no living children at the time the Will was created, an omitted child receives a share in the estate equal in value to the share the child would have received had the testator died intestate, unless the will devised all (or substantially all) of the estate to the other parent of the omitted child or to a trust primarily for the benefit of that other parent and that other parent survives the testator and is entitled to take under the Will.

If the testator had one or more living children at the time the Will was executed, and a portion of the Testator’s estate was bequeathed to such child or children, the omitted child would be entitled to a share as follows:

(a) the omitted child is limited to share(s) given to the testator's then-living children under the Will.

(b) the omitted child is entitled to receive such share of the testator's estate that the child would have received had the testator included all omitted children with the children to whom devises were made under the Will and had given an equal share of the estate to each child.

(c) to the extent feasible, the interest granted an omitted child must be of the same character, whether equitable or legal, present or future, as that given to the testator's then-living children under the Will.

(d) in satisfying a share to the omitted child, shares given to the testator's children who were living when the will was executed will be reduced pro-rata. In making such pro-rata reductions of the shares of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

Moreover, if a child is solely omitted from a Will because the testator mistakenly believes that the child is dead, the child will be entitled to a share of the estate.

Exceptions to the General Rule

Certain exceptions exist to the general rule that an omitted child receives an intestate share of their parent’s estate:

Intentional Omission

If it appears that that omission of a child in a Will was intentional, the omitted child will not receive a share of the estate.

Provided For With Other Assets

If a child was omitted from a parent’s Will, but that parent provided for the child in other ways, such as naming them as a beneficiary of non-probate assets or providing for such child during their life, and is shown by the parent’s statements or can be reasonably inferred by the amount of the transfer or by other evidence, then the omitted child will not receive a share of the parent’s estate.

While the New Jersey statutes have put in safeguards to account for omitted and afterborn children, the best way to ensure that your assets are distributed as you wish is to create a comprehensive Will and update it when you have life changes, such as the birth of a child, that may alter your intended asset distribution.

If you want help in ensuring that your estate plan is up to date, contact the Trust and Estate attorneys at Pashman Stein Walder Hayden for personalized advice based on your unique circumstances.