A pretermitted child under Texas law means a testator’s child who is born or adopted:
- During the testator’s lifetime or after the testator’s death; and
- After the execution of the testator’s will.
See Texas Estates Code section 255.051.
Does A Pretermitted Child Inherit From A Parent’s Estate In Texas?
A pretermitted child does not always inherit from the estate under Texas law. Just because someone is a pretermitted child does not mean that the person inherits under the parent’s will.
The inheritance provisions for pretermitted children under the Texas Estates Code, sections 255.053 and 255.054, apply only to a pretermitted child who is not:
(1) mentioned in the testator’s will;
(2) provided for in the testator’s will; or
(3) otherwise provided for by the testator.
When Is a Pretermitted Child “Otherwise Provided For” Under Texas Law?
A child is provided for or a provision is made for a child if a disposition of property to or for the benefit of the pretermitted child, whether vested or contingent, is made:
(1) in the testator’s will, including a devise to a trustee under Section 254.001 ; or
(2) outside the testator’s will and is intended to take effect at the testator’s death.
What Does A Pretermitted Child Inherit in Texas?
The share of the estate inherited by a Texas pretermitted child depends on the existence of other living children.
Succession by Pretermitted Child If Testator Has Living Child at Will’s Execution
Section 255.053 of the Texas Estates Code provides that:
(a) If no provision is made in the testator’s last will for any child of the testator who is living when the testator executes the will, a pretermitted child succeeds to the portion of the testator’s separate and community estate, other than any portion of the estate devised to the pretermitted child’s other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056 .
(b) If a provision, whether vested or contingent, is made in the testator’s last will for one or more children of the testator who are living when the testator executes the will, a pretermitted child is entitled only to a portion of the disposition made to children under the will that is equal to the portion the child would have received if the testator had:
(1) included all of the testator’s pretermitted children with the children on whom benefits were conferred under the will; and
(2) given an equal share of those benefits to each child.
(c) To the extent feasible, the interest in the testator’s estate to which the pretermitted child is entitled under Subsection (b) must be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred on the testator’s children under the will.
Succession by Pretermitted Child If Testator Has No Living Child at Will’s Execution
If a testator has no child living when the testator executes the testator’s last will, a pretermitted child under Texas law succeeds to the portion of the testator’s separate and community estate, other than any portion of the estate devised to the pretermitted child’s other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056 .
Who Pays For The Pretermitted Child’s Share of The Texas Estate?
A pretermitted child may recover his or her share ratably from the portions of the Texas probate estate passing to the testator’s other children under section 255.053(b) or from the testamentary beneficiaries under Sections 255.053(a) and 255.054, other than the pretermitted child’s other parent. The surviving spouse‘s share is not diminished by the share to the pretermitted child.
In abating the interests of the beneficiaries to provide for the Texas pretermitted child, the character of the testamentary plan adopted by the testator must be preserved to the “maximum extent” possible.
