Omitted or Pretermitted Children Under Wills in Maryland
At a glance
| Will and child covered | Will with legacy for testator's child; later child or issue of later child (§ 3-301(b)). |
|---|---|
| Birth or adoption timing | Born, adopted, or legitimated after will; child or issue must survive testator (§ 3-301(b)(2)–(3)). |
| Naming and provision test | Will benefits a child but makes no provision for later child; express omission defeats share (§ 3-301(b)(1), (4)). |
| Intentional omission | Will must not expressly state that later child or issue should be omitted (§ 3-301(b)(4)). |
| Other-parent gifts | No separate other-parent exception in the statutory child-share conditions (§ 3-301(b)). |
| Outside gifts and advancements | No outside-transfer or advancement test stated in the statutory child-share conditions (§§ 3-301(b), 3-302(a)). |
| Baseline statutory share | Lesser of intestate distribution or total child/represented-issue legacies divided among children and represented branches (§ 3-302(a)). |
| Effect of gifts to existing children | Will must benefit a child; those child and represented-issue legacies cap and fund the share (§§ 3-301(b)(1), 3-302(a)(2), 3-303). |
| Property source and abatement | Personal representative pays from child and represented-issue legacies; proportional contribution; cash/property substitution for specific interest (§ 3-303). |
| Trust and nonprobate reach | These sections address will legacies and estate payment; no express separate-trust or nonprobate recovery direction (§§ 3-301–3-303). |
Requirements one by one
Eligibility
§ 3-301(b) requires an existing legacy for a child in the will and no provision for the person who became the testator's child afterward. It expressly includes birth, adoption, and legitimation after execution. The later child or that child's issue must survive, and the will must not expressly omit them.
Amount and source
§ 3-302(a) gives the lesser of the child's intestate distribution and an equalized share of all legacies to children and issue of deceased children. The divisor counts surviving children and deceased children whose issue take under this subtitle, including the pretermitted child. If the later child died before the testator, subsection (b) lets that child's issue take by representation. Under § 3-303(a)–(b), the personal representative pays from those legacies, with each legatee contributing in proportion to that legatee's share.
What trips people up
Maryland's § 3-301(b)(1) threshold requires the will to contain a child legacy. The later child's amount is also capped by the aggregate child and represented-issue legacies, even when the intestate measure would be larger. Under § 3-303(b)(2), a legatee may satisfy a specific-property contribution with cash or other property acceptable to the omitted child or issue, valued at the testator's death.
Common questions
Can the issue of a child who died before the testator take? Yes, if the statutory conditions are met; § 3-302(b) provides representation.
Does a gift to the child's other parent automatically defeat the share? The eligibility conditions in § 3-301(b) do not state that exception; they focus on the child legacy, later child, survival, and express omission.
Statutes and sources
- Md. Code, Est. & Trusts §§ 3-301–3-303. 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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