Pretermitted heir
Encyclopedia
A pretermitted heir is a term used in the law
of property
to describe a person who would likely stand to inherit under a will
, except that the testator (the person who wrote the will) did not know, or did not know of, the party at the time the will was written. The most common category of pretermitted heir is the pretermitted child, born after the execution of the will.
s that permit a pretermitted child to demand an inheritance under the will. Some allow the child to claim their intestate share
, while others limit the inheritance to an amount that is comparable to devises made in the will for the children who were alive when the will was written. This may be accomplished by proportionally reducing the gift
under the will to the other children, or by reducing gifts under the will to non-family members. An exception common to many jurisdictions prohibits a pretermitted child from claiming an inheritance if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child.
Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made. This may be because the child was incorrectly believed to be dead, or was later adopted
by the testator.
A will may contain a clause, however, which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. A pretermitted heir may also be denied the right to take under the will if they received an advancement against their inheritance - an inter vivos
gift from the testator of an amount equivalent to what the pretermitted child might take under the will.
(what she would have received had the testator died with no will), or the elective share
(a set amount or formula provided by law for spouses who are disinherited in the will).
Like a pretermitted child, a pretermitted spouse may be explicitly disinherited in the will, or may be excluded from taking under the will if they received an advancement on their inheritance in anticipation of the marriage. A pretermitted spouse may also disclaim any interest in the testator's estate through an antenuptial or prenuptial agreement
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of property
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
to describe a person who would likely stand to inherit under a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, except that the testator (the person who wrote the will) did not know, or did not know of, the party at the time the will was written. The most common category of pretermitted heir is the pretermitted child, born after the execution of the will.
Rights of a pretermitted child
Many jurisdictions have enacted statuteStatute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s that permit a pretermitted child to demand an inheritance under the will. Some allow the child to claim their intestate share
Intestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
, while others limit the inheritance to an amount that is comparable to devises made in the will for the children who were alive when the will was written. This may be accomplished by proportionally reducing the gift
Gift (law)
A gift, in the law of property, is the voluntary transfer of property from one person to another without full valuable consideration...
under the will to the other children, or by reducing gifts under the will to non-family members. An exception common to many jurisdictions prohibits a pretermitted child from claiming an inheritance if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child.
Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made. This may be because the child was incorrectly believed to be dead, or was later adopted
Adoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
by the testator.
A will may contain a clause, however, which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. A pretermitted heir may also be denied the right to take under the will if they received an advancement against their inheritance - an inter vivos
Inter vivos
Inter vivos is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer ....
gift from the testator of an amount equivalent to what the pretermitted child might take under the will.
Pretermitted spouse
Another party for whom the state might provide is the pretermitted spouse, whom the testator does not marry until after the execution of the will. Many jurisdictions provide that a pretermitted spouse will receive either her intestate shareIntestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
(what she would have received had the testator died with no will), or the elective share
Elective share
An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will...
(a set amount or formula provided by law for spouses who are disinherited in the will).
Like a pretermitted child, a pretermitted spouse may be explicitly disinherited in the will, or may be excluded from taking under the will if they received an advancement on their inheritance in anticipation of the marriage. A pretermitted spouse may also disclaim any interest in the testator's estate through an antenuptial or prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
.