Children that are born after a will is created, and that are not addressed in the will, are referred to as pretermitted children. New York law provides that pretermitted after-born children can still inherit from their deceased parent’s estate.
New York law does not require a parent to leave assets to a child. The New York law regarding pretermitted children is in place to protect children omitted by mistake, and creates a rule of presumed intent for a testator that mistakenly left an after-born child out of the will.
What Is An “After-Born Child” Under New York Law?
New York EPTL §5-3.2, the pretermitted children statute, defines “after-born child” as:
a child of the testator born during the testator’s lifetime or in gestation at the time of the testator’s death and born thereafter. For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.
What Does A Pretermitted After-Born Child Inherit Under New York Law?
New York EPTL §5-3.2 provides that:
(a) Whenever a testator has a child born after the execution of a last will, and dies leaving the after-born child unprovided for by any settlement, and neither provided for nor in any way mentioned in the will, every such child shall succeed to a portion of the testator’s estate as herein provided:
One Or More Children Living at Execution Of Will, No Provision For Children = No Share of Estate For After-Born Children
(1) If the testator has one or more children living when he executes his last will, and:
(A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator’s estate.
One or More Children Living at Execution of Will, Provision Made For Children = After-Born Children Entitled To Share of Estate
(1) If the testator has one or more children living when he executes his last will, and:
…
(B) Provision is made therein for one or more of such children, an after-born child is entitled to share in the testator’s estate, as follows:
(i) The portion of the testator’s estate in which the after-born child may share is limited to the disposition made to children under the will.
(ii) The after-born child shall receive such share of the testator’s estate, as limited in subclause (i), as he would have received had the testator included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the estate to each such child.
(iii) If it appears from the will that the intention of the testator was to make a limited provision which specifically applied only to the testator’s children living at the time the will was executed, the after-born child succeeds to the portion of such testator’s estate as would have passed to such child had the testator died intestate.
(iv) To the extent that it is feasible, the interest of the after-born child in the testator’s estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest which the testator conferred upon his children under the will.
No Child Living At Execution of Will = After-Born Child Receives Intestate Share
(2) If the testator has no child living when he executes his last will, the after-born child succeeds to the portion of such testator’s estate as would have passed to such child had the testator died intestate.
Where Does The After-Born Child’s Share Come From?
In order to satisfy the share of the after-born child, the interests of the other beneficiaries abate, as follows:
(c) The after-born child may recover the share of the testator’s estate to which such child is entitled, either from the other children under subparagraph (a) (1) (B) or the testamentary beneficiaries under subparagraph (a) (2), ratably, out of the portions of such estate passing to such persons under the will. In abating the interests of such beneficiaries, the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.
Are “After-Known” Children Considered Pretermitted?
No, children who were born before the execution of the testator’s will, but learned about after, are not considered after-born children and do not receive a pretermitted child share under New York Law.
To avoid leaving out after-born children, it is a good idea to revisit your estate planning with a New York probate lawyer after a major life event such as a birth.
