Omitted or Pretermitted Children Under Wills in Maine
At a glance
| Will and child covered | Omitted afterborn or after-adopted child; living child mistakenly believed dead also covered (§ 2-302(1), (3)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death rule covers child living then (§ 2-302(1), (3)). |
| Naming and provision test | Will fails to provide for later child; living-child route requires omission solely from mistaken death belief (§ 2-302(1), (3)). |
| Intentional omission | No share under either later-child route if intent to omit appears from will (§ 2-302(2)(A)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 2-302(1)(A)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent shown by statements or reasonably inferred from amount or other evidence (§ 2-302(2)(B)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 2-302(1)(A)). |
| Effect of gifts to existing children | If then-living children received will gifts: equalized share drawn only from those gifts (§ 2-302(1)(B)(1)–(2)). |
| Property source and abatement | No-child route uses § 3-902 order; earlier children's gifts abate ratably on existing-child route (§ 2-302(1)(B)(4), (4)). |
| Trust and nonprobate reach | Earlier child-gift character preserved where feasible; outside transfer can defeat share only under in-lieu test (§ 2-302(1)(B)(3), (2)(B)). |
Requirements one by one
Which child and share
Maine's § 2-302(1) covers a child born or adopted after will execution and omitted from its provisions. Subsection 3 extends the treatment to a child living at execution who was omitted solely because the testator believed the child dead. With no child living at execution, the later child's starting amount is an intestate-equivalent value. When the will gave property to then-living children, the later child's portion instead comes only from those gifts, equalized as if all omitted later children had been included.
Property used
Under § 2-302(1)(B)(4), then-living children's gifts abate ratably, and the court preserves the will's plan as far as possible. The no-child route uses § 3-902: undisposed property, residuary gifts, general gifts, then specific gifts, subject to the will's stated or demonstrated plan.
What trips people up
The other-parent exception in § 2-302(1)(A) requires that the parent survive and be entitled to take an all-or-substantially-all devise. Both routes also fail when intent to omit appears from the will or an outside transfer was intended in place of a will provision under § 2-302(2).
Common questions
Does any lifetime gift cancel the child's share? No automatic offset appears in § 2-302(2)(B); the outside transfer must have been intended in lieu of a testamentary provision, shown by statements or reasonably inferred from amount or other evidence.
Can the later child's share be a future trust interest? Under § 2-302(1)(B)(3), the share should match the equitable or legal, present or future character of the earlier children's interests where feasible.
Statutes and sources
- 18-C M.R.S. §§ 2-302 and 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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