Omitted or Pretermitted Children Under Wills in Delaware
At a glance
| Will and child covered | Child testator becomes parent of after will, or descendant if child predeceases parent (§ 301). |
|---|---|
| Birth or adoption timing | Parenthood after making will; § 310 includes posthumous and womb child if born alive; § 301 does not spell out adoption test. |
| Naming and provision test | No vested or contingent provision for child, individually or as class member, by will or otherwise (§ 301). |
| Intentional omission | Will may state later child births do not affect it; § 301 then creates no share. |
| Other-parent gifts | No other-parent devise condition in § 301. |
| Outside gifts and advancements | A vested or contingent provision outside will defeats § 301 coverage; no separate advancement-credit formula stated there. |
| Baseline statutory share | Same real and personal estate portion child or descendant would receive on intestacy (§ 301). |
| Effect of gifts to existing children | No then-living-child gift pool; intestate-equivalent portion comes from estate and proportional contribution (§§ 301–302). |
| Property source and abatement | Intestate estate first; deficiency contributed proportionately by devisees and legatees (§ 302). |
| Trust and nonprobate reach | Section 301 counts provision made by will or otherwise; § 302 draws unpaid share from intestate property and will gifts. |
Requirements one by one
Which child and provision
Delaware's § 301 applies when the testator becomes a parent after making the will and made no provision for that child. A provision can be vested or contingent, individual or through a class, and made by will or otherwise. If the child predeceases the parent, a descendant can take the intestate-equivalent portion. Under § 310, a posthumous or womb child is included if born alive.
Property used
The child or descendant's starting portion equals what intestacy would give from the parent's real and personal estate. Under § 302, any intestate property pays first. If that is insufficient, devisees and legatees contribute proportionately from what the will gave them.
What trips people up
The will can say that later child births will not affect it; § 301 then creates no share for those births. A provision outside the will can also defeat the no-provision condition, even if the will itself omits the child.
Common questions
Does the child need to be given an outright, immediately payable gift? Section 301 treats a vested or contingent provision, including one made for a class member, as a provision for the child.
What if the child is born after the testator dies? Section 310 includes a posthumous child or a child in the womb if born alive.
Statutes and sources
- 12 Del. C. §§ 301, 302, and 310. Verbatim current text, official code URL, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Delaware law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Delaware law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace