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What is a Pretermitted Heir and Why It Matters in Estate Law?
Definition & Meaning
A pretermitted heir is a child of a deceased person who is not mentioned in the parent's will and does not receive any inheritance. This legal concept exists to protect children who may have been unintentionally excluded from a will. In such cases, the law allows pretermitted heirs to claim a share of the estate as if they had been included in the will. The assumption is that the parent either forgot about the child or mistakenly thought the child had passed away.
Table of content
Legal Use & context
The term "pretermitted heir" is primarily used in the context of estate planning and probate law. It is relevant in family law cases where a will is contested or when there are disputes over inheritance. This concept ensures that children born or adopted after the execution of a will are not unfairly disinherited. Users may find legal templates helpful for drafting wills that explicitly address the inclusion or exclusion of children, thereby preventing claims of pretermitted heirs.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
(Hypothetical example) If a person creates a will leaving their estate to their two children but later has a third child, that third child may be considered a pretermitted heir. Upon the parent's death, the third child could claim their rightful share of the estate under state law.
State-by-state differences
State
Pretermitted Heir Laws
California
Allows pretermitted heirs to inherit a share unless the will explicitly states otherwise.
Texas
Similar protections exist; however, the will must clearly indicate intent to disinherit.
New York
Pretermitted heirs have rights unless specifically excluded in the will.
This is not a complete list. State laws vary and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Disinheritance
The act of intentionally excluding a person from receiving an inheritance.
Intestate Heir
A person who inherits under state laws when someone dies without a valid will.
Common misunderstandings
What to do if this term applies to you
If you believe you may be a pretermitted heir, consider the following steps:
Review the will to understand its contents and any potential exclusions.
Gather documentation proving your relationship to the deceased.
Consult with a legal professional to discuss your rights and options.
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