Omitted or Pretermitted Children Under Wills in Indiana
At a glance
| Will and child covered | Last will; later-born/adopted child or child believed dead at execution (§ 29-1-3-8(a)–(b)). |
|---|---|
| Birth or adoption timing | Born/adopted after last will, including birth after death; mistaken-death route for existing child (§ 29-1-3-8(a)–(b)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death route requires failure to provide because of belief (§ 29-1-3-8(a)–(b)). |
| Intentional omission | Later-child intent must appear from will; mistaken-death branch allows will or other evidence (§ 29-1-3-8(a)–(b)). |
| Other-parent gifts | Spouse exception, regardless of parentage: known living child at execution, substantially all to spouse, spouse survives (§ 29-1-3-8(a)(1)–(2)). |
| Outside gifts and advancements | Section states no outside-transfer credit or settlement exception; share is based on estate value (§ 29-1-3-8(a)–(b)). |
| Baseline statutory share | Value of intestate share for qualifying later or mistakenly omitted child (§ 29-1-3-8(a)–(b)). |
| Effect of gifts to existing children | Known living child plus substantially-all devise to surviving spouse can bar later-child share; no child-gift pool stated (§ 29-1-3-8(a)). |
| Property source and abatement | Share comes from testator's estate; section states no special abatement sequence (§ 29-1-3-8(a)–(b)). |
| Trust and nonprobate reach | Section addresses a will and estate share; no express trust or nonprobate recovery rule (§ 29-1-3-8(a)–(b)). |
Requirements one by one
Two qualifying paths
Under § 29-1-3-8(a), a child born or adopted after the testator made the last will may qualify, including a child born after death. § 29-1-3-8(b) separately covers a child omitted because the testator believed that child dead when making the will. Both routes start with the value of the child's intestate share.
Evidence of intent
For the later-born or later-adopted child, § 29-1-3-8(a) requires an intentional omission to appear from the will. For the child believed dead, subsection (b) also permits other evidence that the testator would have given the child nothing had the testator known the child lived.
What trips people up
The § 29-1-3-8(a)(1)–(2) exception is tied to a surviving spouse, not expressly to the omitted child's other parent. It requires a child the testator knew was living when the will was executed, a devise of substantially all the estate to the spouse, and the spouse's survival. The section does not set a separate pool of will gifts to existing children or an abatement order.
Common questions
Does a lifetime gift automatically defeat the share? Section 29-1-3-8 does not state an outside-gift substitute or advancement test; it addresses will provision, the stated exceptions, and the estate share.
Can this provision recover a separate trust asset? It addresses the will and a share in the estate, without an express trust or nonprobate recovery direction.
Statutes and sources
- Ind. Code § 29-1-3-8. Verbatim current text, official chapter URL, 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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