Probate, trust, guardianship and inheritance litigation
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Pretermitted Heirs In Ohio Probate

By:  Daniel McGowan, Esq.

A pretermitted heir in Ohio probate is a child or designated heir who is born, adopted, or designated after a testator makes a will, who is not provided for in the will.

Under Ohio law, this child or heir is not disinherited.  Instead, the pretermitted child or heir receives a share of the decedent’s estate, unless it appears from the will that the testator intended to disinherit the pretermitted heir.

Ohio’s pretermitted heirs statute can be found at Ohio Revised Code §2107.34.

What Exactly Is A Pretermitted Heir Under Ohio Law?

As stated above, a pretermitted heir in Ohio is one born after decedent makes their will, who is not included nor disinherited in the testator’s will.

Generally, there are four categories of pretermitted heirs under Ohio law:

  1. A child born alive after a testator makes a will, and no provision has been made for that child or the child’s issue.
  2. A child adopted after a testator makes a will, and no provision has been made for that child or the child’s issue.
  3. A designated heir designated under section 2105.15 of the Ohio Revised Code after the testator makes a will, an no provision has been made for that heir or the heir’s issue.
  4. A child or designated heir who is absent and reported to be dead but proves to be alive, where no provision has been made in the will or by settlement for the pretermitted child or heir, or for their issue.

What Share Of The Decedent’s Estate Does A Pretermitted Heir Receive?

Under Ohio law, a pretermitted heir will receive a share of the estate equal to what the heir would have received out of the estate had the testator died intestate without a surviving spouse, owning only the portion of the estate not devised to the surviving spouse.

The devises and legacies granted by the will, except those to a surviving spouse, are abated proportionately or in any other manner that is necessary to give effect to the intention of the testator as shown by the will.

What Happens If A Pretermitted Child Or Heir Dies Before the Testator?

If a pretermitted child or heir dies before the testator, Ohio law provides that the issue of the deceased pretermitted heir receive the share that the parent would have received if alive.

What About Afterborn Heirs Under Ohio Law?

Afterborn heirs can also inherit under Ohio law.

Any person born more than three hundred days after the date of death of a testator shall not inherit under the testator’s will as a child or heir of the testator unless the will clearly provides otherwise.

If a will clearly provides that such a posthumously born child or heir shall inherit under the will, notwithstanding any provision in the will to the contrary, that child or heir shall inherit only if born within a period of one year and three hundred days from the date of death of the testator.



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