Omitted or Pretermitted Children Under Wills in Arizona
At a glance
| Will and child covered | Will; later-born/adopted child or living child mistakenly believed dead (§ 14-2302(A), (E), (G)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death route for then-living child (§ 14-2302(A), (E), (G)). |
| Naming and provision test | Failure to provide by will triggers rule; no separate naming-only safe harbor stated (§ 14-2302(A)). |
| Intentional omission | Intentional omission must appear from the will (§ 14-2302(D)(1)). |
| Other-parent gifts | If no child lived at execution: substantially all to other parent, who survives and takes, bars share (§ 14-2302(A)(1)). |
| Outside gifts and advancements | Outside-will transfer bars share only when intended in lieu of will provision; statements, amount, or other evidence may show intent (§ 14-2302(D)(2)). |
| Baseline statutory share | No then-living child: intestate-equivalent value; devise to existing child: equalized share of those child devises (§ 14-2302(A)). |
| Effect of gifts to existing children | If will benefits then-living children, share limited to their devises; preserve interest character where feasible (§ 14-2302(A)(2), (B)). |
| Property source and abatement | Existing-child route: their devises abate ratably; no-child route: § 14-3902 order, subject to testamentary intent (§§ 14-2302(C), (F), 14-3902(A)–(B)). |
| Trust and nonprobate reach | Outside-will transfer can defeat share if intended substitute; no general nonprobate recovery stated (§ 14-2302(D)(2)). |
Requirements one by one
Which children qualify
Under § 14-2302(A) and (G), the ordinary route covers a child born or adopted after will execution whom the will fails to provide for. Subsection (E) adds a then-living child omitted solely because the testator believed the child had died. That child takes as though later born or adopted.
Share measure and existing children
If no child lived when the will was executed, § 14-2302(A)(1) gives an intestate-equivalent value, subject to the other-parent exception. If the will devised an interest to a then-living child, paragraph (A)(2) instead uses only the devises to those children: it asks what each would have received had all omitted children joined the benefited children in equal shares. Subsection (B) preserves, where feasible, the existing gift's equitable or legal, present or future character.
Which devises supply the share
For the existing-child route, § 14-2302(C) reduces the then-living children's devises ratably, while preserving the testamentary plan as far as possible. For the no-child route, subsection (F) invokes § 14-3902(A): undisposed property, residuary devises, general devises, then specific devises, with proportional abatement within each class. Section 14-3902(B) permits an order that gives effect to contrary testamentary intent.
What trips people up
The other-parent exception requires all of these § 14-2302(A)(1) facts: no child living at execution, all or substantially all devised to the omitted child's other parent, and that parent survives and is entitled to take. An outside-will benefit is different: subsection (D)(2) requires a transfer in lieu of testamentary provision. The testator's statements can show that intent, or the transfer amount or other evidence can support a reasonable inference. Intentional omission under (D)(1) must appear from the will.
Common questions
Does merely naming a future child settle the issue? Section 14-2302(A) asks whether the will provides for the child. It gives no separate naming-only exception.
Can the statute reach a trust or other nonprobate asset? Section 14-2302(D)(2) treats an intended substitute transfer outside the will as a bar to the share. These provisions do not themselves state a general recovery rule against nonprobate assets.
Statutes and sources
- Ariz. Rev. Stat. §§ 14-2302 and 14-3902. 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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