Omitted or Pretermitted Children Under Wills in Kentucky
At a glance
| Will and child covered | Child born or adopted after will execution and not provided for; separate posthumous-child rule (§§ 394.382(1), 394.460). |
|---|---|
| Birth or adoption timing | Born or adopted after execution; § 394.460 expressly addresses posthumous child (§§ 394.382(1), 394.460). |
| Naming and provision test | Will fails to provide for later child; no separate nominal-gift test stated (§ 394.382(1)). |
| Intentional omission | Later-child share excluded if intentional omission appears from will (§ 394.382(1)(a)). |
| Other-parent gifts | At execution, testator had child and devised substantially all estate to omitted child's other parent (§ 394.382(1)(b)). |
| Outside gifts and advancements | Outside transfers defeat share if intended in lieu of will provision, shown by statements, amount, or other evidence (§ 394.382(1)(c)). |
| Baseline statutory share | Value of share child would receive on intestacy (§ 394.382(1)). |
| Effect of gifts to existing children | Existing child matters to other-parent exception; no equalized child-devise formula (§ 394.382(1)(b)). |
| Property source and abatement | General share ratably from heirs, devisees, legatees; posthumous share first from undisposed estate, then ratably from devisees (§§ 394.382(2), 394.460). |
| Trust and nonprobate reach | Outside transfers can defeat coverage; statutory share is taken from estate interests and devises (§ 394.382(1)(c), (2)). |
Requirements one by one
Qualifying child and amount
The rule in § 394.382(1) protects a child born or adopted after will execution who receives no will provision. The child's starting share equals the value the child would have received on intestacy. The exception for a devise to the other parent applies only if the testator already had one or more children at execution and devised substantially all the estate to that parent.
Source of payment
For the general later-child share, § 394.382(2) takes the amount ratably from heirs, devisees, and legatees. The separate posthumous-child rule in § 394.460 directs the share first from property not disposed of by the will after debts and charges, then ratably from devisees. Under § 394.470, that child is a devisee for contribution rights and responsibilities.
What trips people up
Section 394.382(1)(c) requires more than an outside gift: the testator must have meant the transfers to replace a testamentary provision, as shown by statements, the amount transferred, or other evidence. Intentional omission under subsection (1)(a), by contrast, must appear from the will.
Common questions
Does a posthumous child use the same payment source as every later child? Section 394.460 supplies a specific order for a posthumous child: undisposed estate property first, then devisees ratably.
Does the statute equalize gifts to children already named in the will? Section 394.382(1) uses an intestate-value measure and subsection (2) apportions payment among heirs, devisees, and legatees; it does not set out a child-gift equalization pool.
Statutes and sources
- KRS §§ 394.382 and 394.460–.470. 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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