Inheriting as an “Omitted Child”

In a prior blog post, we addressed what it means to be an “Omitted Spouse.”  If a Will made before marriage makes no provision for a future spouse, the surviving spouse is, with some exceptions, entitled to an “intestate share” of the deceased spouse’s estate.  When someone dies without a Will they are said to have died “intestate,” and New Jersey law dictates the manner in which that person’s estate is distributed.  The amount received by a spouse under intestacy laws varies depending upon whether the decedent had children and whether his or her parents are surviving, but it can include the entire estate.

New Jersey law also makes provisions for an “Omitted Child.”  Similar to the provisions relating to an Omitted Spouse, if someone fails to provide in his or her will for any children born or adopted after the Will is made, the omitted after-born or after-adopted child can be entitled to an intestate share of the estate.  However, if it appears that the omission was intentional, or it can be proven that the Omitted Child was provided for outside of the will (for example, as the beneficiary of a life insurance policy, annuity, IRA, etc.), then the child is not considered an Omitted Child.

To avoid the Omitted Child scenario, the Will should make it clear that after-born or after-adopted children share equally in the estate in the same manner as children who were born or adopted as of the date the Will was made.

But what if a child is left out of a parent’s Will that was executed well after the child was born; is there any recourse?  Perhaps, but not unless the child can demonstrate that the parent was aware of the child but believed him or her to be deceased (in which case the child attains Omitted Child status).  The recourse in that case would have to involve invalidating the Will on the basis that it does not meet the statutory requirements (see my post here) or that the parent lacked capacity or was unduly influenced in his or her decision to exclude the child (see my post here). If the Will is invalidated and the decedent’s property thus passes by intestacy (rather than by the provisions of a previously executed valid Will also made before the child was born which also excludes the child), then assuming paternity is established the child could inherit through intestacy.

If you have any questions about this post or any other matters, please contact me at jjcostellojr@nmmlaw.com.