Omitted or Pretermitted Children Under Wills in Alabama
At a glance
| Will and child covered | Later-born/adopted child omitted from will; living child mistakenly believed dead (§ 43-8-91(a)–(b)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; separate mistaken-death route for child living then (§ 43-8-91(a)–(b)). |
| Naming and provision test | Will fails to provide for later child; living child must be omitted solely from belief of death (§ 43-8-91(a)–(b)). |
| Intentional omission | Later-child share excluded if intentional omission appears from will (§ 43-8-91(a)(1)). |
| Other-parent gifts | At execution, testator had child and devised substantially all estate to omitted child's other parent (§ 43-8-91(a)(2)). |
| Outside gifts and advancements | Outside transfer excludes later child if intent to replace testamentary provision is reasonably proved (§ 43-8-91(a)(3)). |
| Baseline statutory share | Intestate-equivalent value for qualifying later child or living child believed dead (§ 43-8-91(a)–(b)). |
| Effect of gifts to existing children | Existing child matters to other-parent exception; no equalized child-devise formula in share provision (§ 43-8-91(a)). |
| Property source and abatement | Will devises abate through undisposed property, residue, general, then specific gifts, subject to testamentary intent (§§ 43-8-91(c), 43-8-76). |
| Trust and nonprobate reach | Outside transfer may defeat later-child claim; share comes from estate through will abatement (§ 43-8-91(a)(3), (c)). |
Requirements one by one
Eligible children and share
Under § 43-8-91(a), the later child must have been born or adopted after execution and left without a will provision. The qualifying share equals the value the child would have taken had the testator died intestate. The rule in § 43-8-91(b) gives the same measure to a child living when the will was signed but omitted solely because the testator believed that child dead.
Where the share comes from
Section 43-8-91(c) sends the will gifts to § 43-8-76(a)'s abatement order: property not disposed of by will, residue, general devises, then specific devises. Subsection (b) of the abatement statute lets the will's expressed order or testamentary purpose control if the ordinary sequence would defeat it.
What trips people up
Alabama's other-parent exception in § 43-8-91(a)(2) requires that the testator had one or more children when the will was executed and then devised substantially all the estate to the omitted child's other parent. The statute does not state an additional surviving-parent condition in that exception.
An outside transfer excludes a later child only if intent to replace a testamentary provision is reasonably proved under § 43-8-91(a)(3). A transfer's mere existence is not the statutory test.
Common questions
Can evidence outside the will prove intentional omission? Section 43-8-91(a)(1) requires intentional omission to appear from the will. The outside-transfer exception separately calls for reasonable proof of its purpose.
Does the section equalize gifts to children already named in the will? The measure in § 43-8-91(a) is intestate-equivalent value; it does not set out an equalized child-devise pool.
Statutes and sources
- Ala. Code §§ 43-8-91 and 43-8-76. Verbatim current text, official section viewer URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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