Omitted or Pretermitted Children Under Wills in Massachusetts

Short answer A Massachusetts child born or adopted after a will may receive a share if the will fails to provide for the child; a then-living child omitted because the testator believed the child dead may also qualify. The share depends on whether children lived when the will was signed, and exceptions cover intentional omission and an intended outside-will substitute. A claim for a share in real property must be filed in the probate registry within one year after death. (Mass. Gen. Laws ch. 190B, § 2-302.)
State
Massachusetts
Statute checked
October 5, 2026
Sources
4 statutes

At a glance

Will and child coveredWill; later-born/adopted child or living child mistakenly believed dead (§ 2-302(a), (c)).
Birth or adoption timingBirth/adoption after will execution; mistaken-death route for child living at execution (§ 2-302(a), (c)).
Naming and provision testWill fails to provide; no separate naming-only exception stated (§ 2-302(a)).
Intentional omissionIntentional omission must appear from will (§ 2-302(b)(1)).
Other-parent giftsNo-child-at-execution route barred if substantially all to other parent, who survives and takes (§ 2-302(a)(1)).
Outside gifts and advancementsOutside transfer substitutes only with in-lieu intent shown by statements, amount, or other evidence (§ 2-302(b)(2)).
Baseline statutory shareNo child living at execution: intestate-equivalent value, subject to other-parent exception (§ 2-302(a)(1)).
Effect of gifts to existing childrenThen-living children's will devises form equal-share pool; match interest character if feasible (§ 2-302(a)(2)(i)–(iii)).
Property source and abatementExisting-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 reachIntended 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.

This page gives general information about omitted-child statutes, not advice about a particular child, will, or estate. The will's words, other law, and the facts can change the result. Check current official law and consult a licensed adviser before acting.

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