Omitted or Pretermitted Children Under Wills in Alaska
At a glance
| Will and child covered | Omitted afterborn or after-adopted child; living child mistakenly believed dead also covered (§ 13.12.302(a), (c)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death rule applies to child living then (§ 13.12.302(a), (c)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death omission must be solely from belief child was dead (§ 13.12.302(a), (c)). |
| Intentional omission | No later-child share if intent to omit appears from will (§ 13.12.302(b)(1)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 13.12.302(a)(1)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent shown by statements or reasonably inferred from amount or other evidence (§ 13.12.302(b)(2)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 13.12.302(a)(1)). |
| Effect of gifts to existing children | If then-living children received will gifts: equalized share drawn only from those gifts (§ 13.12.302(a)(2)(A)–(B)). |
| Property source and abatement | No-child route uses § 13.16.540 order; earlier children's gifts abate ratably on child-gift route (§ 13.12.302(a)(2)(D), (d)). |
| Trust and nonprobate reach | Earlier child-gift character preserved where feasible; outside transfer can defeat share under in-lieu test (§ 13.12.302(a)(2)(C), (b)(2)). |
Requirements one by one
Child and share
Under § 13.12.302(a), the ordinary route covers a child born or adopted after will execution for whom the will fails to provide. Subsection (c) treats a living child omitted solely because the testator believed the child dead as an omitted later child. If no child lived at execution, the starting value is an intestate-equivalent share. When the will gave property to then-living children, the later child's pool is those gifts, equalized as if all omitted later children had been included.
Property used
Earlier child gifts abate ratably under § 13.12.302(a)(2)(D), preserving the testamentary plan as far as possible. The no-child route uses § 13.16.540: undisposed property, residuary gifts, general gifts, then specific gifts, subject to the will's intent.
What trips people up
The other-parent exception requires an all-or-substantially-all devise to the omitted child's other parent, who must survive and be entitled to take. Both later-child routes also fail if intent to omit appears from the will or an outside transfer was meant in place of a will provision under § 13.12.302(b).
Common questions
Does any gift outside the will replace the share? The testator's statements, the amount, or other evidence must show that the transfer was intended in lieu of a testamentary provision (§ 13.12.302(b)(2)).
Can the later child's gift be a future trust interest? Under § 13.12.302(a)(2)(C), the share should match the earlier children's equitable or legal, present or future interest where feasible.
Statutes and sources
- Alaska Stat. §§ 13.12.302 and 13.16.540. Verbatim current text, official section 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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