Information about Pretermitted Heir

The Law of Wills, Trusts and Inheritance
Part of the common law series
Wills
Wills  · Holographic will
Joint wills and mutual wills  · Will contract
Codicils
Parts of a Will
Attestation clause  · Residuary clause
Incorporation by reference
Contesting a Will
Testamentary capacity  · Undue influence
Insane delusion  · Fraud
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Trusts
The Law of Trusts
Generic Terms:
Express trust  · Constructive trust
Resulting trust
Common Types of Trust:
Bare trust  · Discretionary trust
Accumulation and Maintenance trust
Interest in Possession trust
Charitable trust  · Purpose trust
Incentive trust
Other Specific Types of Trust:
Protective trust  · Spendthrift trust
Life insurance trust  · Remainder trust
Life interest trust  · Reversionary interest trust
Honorary trust  · Asset-protection trust
Special needs trust: (general)/(U.S.)
Doctrines governing trusts
Pour-over will  · Cy-prs doctrine
Other related topics
Living Wills (advance directives)
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Other areas of the Common Law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

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.

Rights of a pretermitted child

Many jurisdictions have enacted statutes 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.

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 share (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.