Written by attorney Mark Michael Campanella

Inheritance Rights of Afterborn or Pretermitted Heirs?

Is this a tragic scenario? Probably not, but it certainly represents what is an entirely avoidable estate planning consequence. Here’s the dilemma, and I’ll pose it to you in the form of a hypothetical. Assume after having your first child, you do the smart, responsible thing – you draft a Last Will and Testament which sets forth your final distribution wishes. Fast forward a couple years and say that your first child now has a sibling that you unintentionally failed to accommodate for in your Will. OK, one last fast forward in time. Twenty-five years later, despite your best intentions and the daily grind always seemingly getting in the way, you find that you never quite got around to updating your Will to reflect your wishes regarding that later born child before you pass away. Oops. So much for the best laid plans, right?

Even though you loved your children equally and probably wanted them to similarly share in your estate, what actually happens now? Will that later born child you omitted from your Will be disinherited because of your planning error, or will the law accommodate her somehow? These are scary questions, but it’s my hope to not only assuage your fears, but prompt you to action in order to avoid any unwanted estate planning consequences down the road.

If it’s not already abundantly clear, today I’m writing about the inheritance rights of children in New York, and specifically those that are left out of a parent’s estate plan (sometimes referred to pretermitted heirs). For better or worse, it’s more common than you might think that children are left out of a parent’s Will. The good news is that New York State recognizes that drafters sometimes make unintentional planning errors. Our legislature has set in place certain rules to ensure that pretermitted children arenotprecluded from inheriting. What exactly are they entitled to though if they’ve been omitted?

Under New York law, a child omitted from a Will is entitled to inherit the equivalent of her intestate share of the estate, which translates into that portion of the estate that she would have received had the parent died without a Will in the first instance. The only caveat to this rule is that the parent must not have expressly disclaimed or disinherited the child. In New York, short of successfully contesting a Will, testamentary provisions that disinherit an adult child will typically stand. So while disinheriting a child can prove to be the death knell to his inheriting, a simple inadvertent omission won’t typically prove fatal to a child inheriting.

Could the confusion of this entire scenario have been avoided from the get go? Of course, and in particular, there are two ways it could have been achieved. The first method I offer is a simple alternative for those who don’t want to regularly revisit their wills. For anyone planning on having more than one child (and even those who aren’t), a qualified estate planning attorney knows the proper language to include in a Will to accommodate for the possibility of after born children. Consult with counsel and be sure he knows your plans/intentions so that the proper verbiage can be included in your Will.

The second method I offer is my preferred alternative. As far as I’m concerned, Wills and Estate Plans are organic entities that occasionally need to be revisited and adjusted based on the present conditions of your life. Plain and simple, these adjustments are absolutely necessary as the circumstances in one’s life change, whether it be because of a new child, divorce, retirement, and so forth. In order to do your heirs justice and make sure that your wishes are carried out, update your Estate Plan as necessary. While it’s easy to be lazy and assume that your existing Will accomplishes all of your intended estate planning goals, don’t make assumptions. It might cost you a little bit extra to revisit your plan on occasion, but it could mean the difference between your wishes being carried out or not.

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