Omitted or Pretermitted Children Under Wills in Idaho
At a glance
| Will and child covered | Later-born/adopted child not provided for; living child omitted solely from mistaken belief of death (§ 15-2-302(a)–(b)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death route concerns child living at execution (§ 15-2-302(a)–(b)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death route requires omission solely from belief child was dead (§ 15-2-302(a)–(b)). |
| Intentional omission | Later-child share excluded if omission appears intentional from will (§ 15-2-302(a)(1)). |
| Other-parent gifts | At execution testator had child and devised substantially all estate to omitted child's other parent; no survival/taking condition stated (§ 15-2-302(a)(2)). |
| Outside gifts and advancements | Outside transfer defeats later-child share if intended in lieu of will gift, shown by statements, amount, or other evidence (§ 15-2-302(a)(3)). |
| Baseline statutory share | Intestate-equivalent value for qualifying later child or child omitted through mistaken belief of death (§ 15-2-302(a), (b)). |
| Effect of gifts to existing children | Existing child at execution conditions other-parent exception; no then-living-child devise pool in § 15-2-302(a). |
| Property source and abatement | Undevised property, residue, general devises, then specific devises; order can yield to will's plan (§§ 15-2-302(c), 15-3-902(a)–(b)). |
| Trust and nonprobate reach | Outside transfer intended as substitute may defeat later-child will share (§ 15-2-302(a)(3)). |
Requirements one by one
Covered child
Section 15-2-302(a) protects a child born or adopted after will execution whom the will fails to provide for. Under § 15-2-302(b), a child already living at execution gets the same intestate-value measure if omitted solely because the testator believed the child dead.
Property used for the share
Section 15-2-302(c) sends abatement to § 15-3-902(a): property not disposed of by the will comes first, then residuary, general, and specific devises. That order makes no preference between real and personal property.
What trips people up
The other-parent exception in § 15-2-302(a)(2) requires the testator to have had at least one child at execution and to have devised substantially all the estate to the omitted child's other parent. It does not add a condition that the parent survive or take under the will. Under subsection (a)(3), an outside transfer must be intended in lieu of a will provision; statements, amount, or other evidence can establish that intent. A large transfer alone is not stated as an automatic threshold.
Common questions
Can the will change the default abatement order? Under § 15-3-902(b), an expressed order controls, and the order may also change when needed to give effect to the testator's plan or a devise's purpose.
How does a general devise charged on one fund abate? Section 15-3-902(a) treats it as specific up to the fund's value and general for any shortfall.
Statutes and sources
- Idaho Code §§ 15-2-302 and 15-3-902. 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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