In Texas, inheritance laws are designed to ensure that the wishes of a deceased individual (the testator) are honored and that their assets are distributed according to their estate plan. However, sometimes unforeseen circumstances arise, such as the birth or adoption of a child after the creation of a will. These children, known as "pretermitted children," have specific rights under Texas law to protect their inheritance interests.Â
What is a Pretermitted Child?
A pretermitted child is one who is born or adopted after a parent has executed their will but is not mentioned or provided for in that will. This can happen for several reasons, such as the parent not updating their will after the child's birth or adoption, or simply forgetting to include the child.
Texas Laws Protecting Pretermitted Children
Texas has specific statutes to protect the inheritance rights of pretermitted children. According to Texas Estates Code Section 255.051, if a testator has a child after executing their will and does not amend the will to include that child, the pretermitted child may be entitled to a share of the estate.
Key Provisions for Pretermitted Children in Texas
- Equal Treatment with Siblings: If the testator had other children at the time the will was executed and the will provides for those children, the pretermitted child is entitled to a share of the estate as if they had been included in the will. This share is typically calculated based on what the other children receive under the will.
- If No Provision for Existing Children: If the testator had other children at the time of the will's execution but did not provide for them in the will (intentionally or otherwise), the pretermitted child is entitled to receive a share of the estate that would be distributed under Texas intestacy laws (laws governing inheritance without a will).
- Unintentional Omission: If it appears that the omission of the pretermitted child was unintentional, the law assumes that the testator intended to provide for all of their children, and the pretermitted child will receive an appropriate share.
- Exclusion or Disinheritance: If the will explicitly states that any future children are to be excluded from inheritance, the pretermitted child may not have a claim to the estate. However, such explicit disinheritance must be clearly articulated in the will.
Calculating the Share for a Pretermitted Child
The share of the estate that a pretermitted child is entitled to can vary depending on the circumstances:
- Equal Share with Siblings: If the will provides for existing children, the pretermitted child typically receives a share equivalent to that of the other children.
- Intestate Share: If no provision is made for existing children, the pretermitted child’s share is calculated as if the testator had died without a will (intestate), following Texas intestacy laws.
Pretermitted children in Texas have specific protections under the law to ensure they are not inadvertently disinherited due to the oversight of updating a will. If you are a pretermitted child or if you are an estate executor handling a will that may involve a pretermitted child, it is essential to understand these legal provisions and seek appropriate legal guidance. By doing so, you can help ensure that the testator's intentions are honored and that all children receive their rightful inheritance.
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