Omitted or Pretermitted Children Under Wills in Illinois
At a glance
| Will and child covered | Will; testator's child born after execution (§ 4-10). |
|---|---|
| Birth or adoption timing | Born after will execution; § 4-10 does not separately name adoption. |
| Naming and provision test | Will provision for child defeats default; no separate bare-mention test stated (§ 4-10). |
| Intentional omission | No share if intention to disinherit child appears by the will (§ 4-10). |
| Other-parent gifts | § 4-10 states no separate other-parent gift exception. |
| Outside gifts and advancements | § 4-10 states no outside-will gift or advancement exception. |
| Baseline statutory share | Portion the child would receive if testator died intestate; spouse and descendants take under § 2-1(a)–(b) (§§ 4-10, 2-1). |
| Effect of gifts to existing children | § 4-10 gives no distinct formula tied to gifts for children living at execution. |
| Property source and abatement | All legacies abate proportionately for child's intestate-equivalent share (§ 4-10). |
| Trust and nonprobate reach | § 4-10 addresses the will and legacies; no separate trust or beneficiary-designation extension stated there. |
Requirements one by one
Covered child and will terms
§ 4-10 protects a testator's child born after the will was executed. Its default does not operate if the will provides for the child or if an intention to disinherit the child appears by the will. The section does not separately use adoption or bare mention as a trigger or exclusion.
Share and funding
The child receives the portion of the estate the child would have received had the testator died intestate (§ 4-10). Under § 2-1(a), a surviving spouse and descendants split an intestate estate in halves, with descendants taking their half per stirpes; without a surviving spouse, descendants receive the estate under § 2-1(b). Section 4-10 directs that all legacies abate proportionately to supply the child's share.
What trips people up
Illinois does not use the will-gifts-to-existing-children branch seen in some states: § 4-10 gives an intestate-equivalent share and proportional abatement. Its adoption silence should not be treated as a ruling about an adopted child's legal status under other law.
Common questions
Can intent outside the will alone defeat the rule? The text says the intention to disinherit must appear by the will (§ 4-10).
Does the child's share come only from gifts to other children? Section 4-10 directs proportional abatement of all legacies.
Does the section direct a beneficiary-designated asset to pay? It addresses the will, estate share, and legacies; it states no separate beneficiary-designation formula (§ 4-10).
Statutes and sources
- 755 ILCS 5/2-1 and 5/4-10. Verbatim official excerpts, 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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