When a child is born or adopted after a will is made, and the will makes no provision for them, the child is an “omitted child” under New Jersey law. The general rule under New Jersey law is that if a decedent fails to provide in the will for any child born or adopted after the will is made, the omitted child can be entitled to an intestate share of the decedent’s estate. Like most rules, exceptions exist.
What Share Of the Estate Is an Omitted Child Entitled To In New Jersey?
New Jersey law section 3B:5-16 provides that if a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted after-born or after-adopted child receives a share in the estate as follows:
Share Of Omitted Child If No Other Living Children: If the testator had no child living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which 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.
Share Of Omitted Child If One Or More Living Children: If the testator had one or more children living when he executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:
(a) the portion of the testator’s estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.
(b) the omitted after-born or after-adopted child is entitled to receive the share of the testator’s estate, as limited in subparagraph (a), that the child would have received had the testator included all omitted after-born and after-adopted 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 after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.
(d) in satisfying a share provided by this paragraph, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
Exceptions To the Share Of the Omitted Child Under New Jersey Law
As mentioned above, exceptions exist to the general rule that an omitted after-born or after-adopted child receives an intestate share of the decedent’s estate.
Intentional Omission
If it appears from the will that the omission of the after-born or after-adopted child was intentional, then the after-born or after-adopted child will not receive a share of the estate under New Jersey intestacy law.
Omitted Child Provided For Outside Of the Will
An omitted after-born or after-adopted child will also not receive an intestate share of the New Jersey estate if the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
Mistaken Belief That a Living Child Is Dead
The New Jersey omitted child statute also contemplates a scenario where the testator mistakenly believes that a living child is dead at the time the will is executed and provides:
If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child is entitled to a share in the estate as if the child were an omitted after-born or after-adopted child.
Where Does the Omitted Child’s Share Get Paid From?
The omitted child’s share shall be taken from devisees under the will ratably and in proportion to their respective interests therein. This means that the shares of the other beneficiaries are decreased pro rata to fund the omitted child’s share.
