Omitted or Pretermitted Children Under Wills in Hawaii
At a glance
| Will and child covered | Omitted child born or adopted after will; living child mistakenly believed dead also covered (§ 560:2-302(a), (c)). |
|---|---|
| Birth or adoption timing | Birth or adoption after execution; mistaken-death rule applies to a child living at execution (§ 560:2-302(a), (c)). |
| Naming and provision test | Will fails to provide for child; mistaken-death rule requires omission solely from belief child was dead (§ 560:2-302(a), (c)). |
| Intentional omission | No share under either route if intent to omit appears from will (§ 560:2-302(b)(1)). |
| Other-parent gifts | No-child route: substantially all estate devised to other parent who survives and is entitled to take (§ 560:2-302(a)(1)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent is shown by statements or reasonably inferred from amount or other evidence (§ 560:2-302(b)(2)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 560:2-302(a)(1)). |
| Effect of gifts to existing children | If living children received will gifts: equalized share only from those gifts; preserve gift character where feasible (§ 560:2-302(a)(2)). |
| Property source and abatement | No-child route uses § 560:3-902 abatement order; existing-child gifts abate ratably with plan preserved as far as possible (§ 560:2-302(a)(2)(D), (d)). |
| Trust and nonprobate reach | Child-gift share keeps equitable or legal, present or future character where feasible; outside transfers may defeat share (§ 560:2-302(a)(2)(C), (b)(2)). |
Requirements one by one
Which child and when
Hawaii's § 560:2-302(a) covers a child born or adopted after the will was executed if the will fails to provide for the child. Under § 560:2-302(c), a child already living at execution is treated as an omitted later child if the only reason for omission was the testator's belief that the child had died.
Share and property source
With no child living at execution, the starting value is what the omitted child would have received on intestacy. If the will instead gave property to a child already living at execution, § 560:2-302(a)(2) limits the later child's pool to those child gifts and computes an equalized share as though all omitted later children had been included. Those earlier child gifts abate ratably, while the court preserves the will's plan as far as possible.
For the no-child route, § 560:3-902 ordinarily uses undisposed property first, then residuary, general, and specific devises. Its own subsection (b) permits a different order to carry out the testator's intent.
What trips people up
The other-parent exception belongs to the no-child route: it requires a devise of all or substantially all of the estate to the omitted child's other parent, who must survive and be entitled to take. Separately, either route fails if intentional omission appears from the will, or an outside transfer was meant to replace a will provision under the evidence test in § 560:2-302(b).
Common questions
Does a gift outside the will automatically count against the child? The statute asks whether that transfer was intended to stand in place of a will gift; the testator's statements, its amount, or other evidence may show that intent (§ 560:2-302(b)(2)).
Can the child's interest be a trust interest? In the existing-child gift route, § 560:2-302(a)(2)(C) says the omitted child's interest should, where feasible, have the same equitable or legal, present or future character as the gifts to the then-living children.
Statutes and sources
- Haw. Rev. Stat. §§ 560:2-302 and 560:3-902. 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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