Omitted or Pretermitted Children Under Wills in Massachusetts
At a glance
| Will and child covered | Will; later-born/adopted child or living child mistakenly believed dead (§ 2-302(a), (c)). |
|---|---|
| Birth or adoption timing | Birth/adoption after will execution; mistaken-death route for child living at execution (§ 2-302(a), (c)). |
| Naming and provision test | Will fails to provide; no separate naming-only exception stated (§ 2-302(a)). |
| Intentional omission | Intentional omission must appear from will (§ 2-302(b)(1)). |
| Other-parent gifts | No-child-at-execution route barred if substantially all to other parent, who survives and takes (§ 2-302(a)(1)). |
| Outside gifts and advancements | Outside transfer substitutes only with in-lieu intent shown by statements, amount, or other evidence (§ 2-302(b)(2)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 2-302(a)(1)). |
| Effect of gifts to existing children | Then-living children's will devises form equal-share pool; match interest character if feasible (§ 2-302(a)(2)(i)–(iii)). |
| Property source and abatement | Existing-child gifts abate ratably; no-child route follows § 3-902; real-property claim filed within one year of death (§§ 2-302(a)(2)(iv), (d)–(e), 3-902). |
| Trust and nonprobate reach | Intended outside-will substitute can bar share; no general nonprobate recovery stated (§ 2-302(b)(2)). |
Requirements one by one
Which children and gifts count
Section 2-302(a) starts with a child born or adopted after execution for whom the will makes no provision. Subsection (c) also covers a child already living if the testator failed to provide solely because the testator believed that child dead.
Two share calculations
If no child lived at execution, § 2-302(a)(1) starts with an intestate-equivalent value, subject to its other-parent exception. If a then-living child received a devise, subsection (a)(2) instead pools only those children's devises and calculates the equal share the omitted children would have received if included. Where feasible, their interests retain the existing gifts' legal or equitable, present or future character.
Paying the share
The then-living children's devises abate ratably under § 2-302(a)(2)(iv). For the no-child route, subsection (d) directs abatement under § 3-902(a): intestate property, residuary, general, then specific devises, with proportional reduction within each class. Subsection (b) permits an order that gives effect to the will or testamentary plan.
What trips people up
Under § 2-302(e), an omitted child cannot take a share in real property unless a claim is filed in the probate registry by or for the child within one year after death. The other-parent exception requires that parent to survive and be entitled to take under the will. Intentional omission must appear from the will; an outside transfer bars the share only if intended in lieu of a will provision (§ 2-302(b)).
Common questions
Is an outside-will gift automatically enough? No. Section 2-302(b)(2) requires substitution intent shown by statements or reasonably inferred from the amount or other evidence.
Does the statute itself recover assets from a separate trust? Section 2-302(b)(2) addresses a substitute transfer outside the will; it does not state a general nonprobate recovery rule.
Statutes and sources
- Mass. Gen. Laws ch. 190B, §§ 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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