Omitted or Pretermitted Children Under Wills in Michigan
At a glance
| Will and child covered | Will; later-born/adopted child or living child wrongly believed dead (§ 700.2302(1), (3)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death child alive at execution (§ 700.2302(1), (3)). |
| Naming and provision test | Will must fail to provide for later child; mistaken-death omission has separate cause test (§ 700.2302(1), (3)). |
| Intentional omission | No afterborn share if omission appears intentional from will (§ 700.2302(2)(a)). |
| Other-parent gifts | No intestate branch if other parent survives, can take, and receives all or substantially all (§ 700.2302(1)(a)). |
| Outside gifts and advancements | Outside transfer substitutes if statements, amount, or other evidence show intent (§ 700.2302(2)(b)). |
| Baseline statutory share | No living child at execution: intestate equivalent, subject to other-parent exception (§ 700.2302(1)(a)). |
| Effect of gifts to existing children | If then-living children receive devises, later child shares equally only in those devises (§ 700.2302(1)(b)). |
| Property source and abatement | Existing children's devises abate ratably; intestate branch uses statutory abatement order (§§ 700.2302(1)(b)(iv), (4), 700.3902). |
| Trust and nonprobate reach | Equitable will interests mirrored if feasible; outside-will transfer may substitute with proven intent (§ 700.2302(1)(b)(iii), (2)(b)). |
Requirements one by one
Child and will threshold
§ 700.2302(1) starts with a child born or adopted after execution for whom the will makes no provision. § 700.2302(3) separately protects a child already living when the will was signed if the testator omitted the child solely because the testator believed the child dead. That child receives a share as if later born or adopted.
Two share calculations
With no child living at execution, § 700.2302(1)(a) gives the later child the value of an intestate share, subject to its other-parent devise exception. When a child was living and the will devised property to a then-living child, § 700.2302(1)(b) instead pools only the devises to those then-living children and asks what equal share each child would have received if all omitted later children had been included. The interest should match the existing children's legal or equitable, present or future interests where feasible.
Evidence that changes the result
An intentional omission must appear from the will (§ 700.2302(2)(a)). A separate outside-will transfer can substitute for a will provision when the testator's statements show that purpose, or the amount or other evidence reasonably implies it (§ 700.2302(2)(b)). The latter test is about intent to substitute, not merely the existence of a gift.
Paying the share
In the existing-child branch, § 700.2302(1)(b)(iv) reduces those children's devises ratably while preserving the testamentary plan as far as possible. The no-living-child branch points to § 700.3902(1)–(3): property not disposed of by the will, residuary devises, general devises, then specific devises, subject to that section's will-intent and classification rules.
What trips people up
The other-parent exception requires all three statutory conditions: the will devises all or substantially all of the estate to that parent, the parent survives, and the parent is entitled to take under the will (§ 700.2302(1)(a)). It applies to the intestate-comparison branch; it is not a general exception to every omitted-child claim.
Common questions
Can a child believed dead when the will was signed qualify? Yes, if that belief was the sole reason for the omission. § 700.2302(3) treats the child like an omitted later-born or later-adopted child.
Is a lifetime gift automatically a substitute for a will provision? § 700.2302(2)(b) requires statements showing substitution intent or a reasonable inference of that intent from the amount or other evidence.
Statutes and sources
- Mich. Comp. Laws §§ 700.2302 and 700.3902. Verbatim current text, official 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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