Omitted or Pretermitted Children Under Wills in Minnesota
At a glance
| Will and child covered | Later-born/adopted child omitted from will; living child mistakenly believed dead (§ 524.2-302(a), (c)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; separate route for child living then but believed dead (§ 524.2-302(a), (c)). |
| Naming and provision test | Will fails to provide for later child; living-child omission must be solely from mistaken belief of death (§ 524.2-302(a), (c)). |
| Intentional omission | Exception when intentional omission appears from will (§ 524.2-302(b)(1)). |
| Other-parent gifts | Intestate-value share excluded if substantially all estate goes to other parent who survives and can take (§ 524.2-302(a)(1), (c)). |
| Outside gifts and advancements | Outside transfer defeats claim if intended in lieu of will gift; intent shown by statements or inferred (§ 524.2-302(b)(2)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value; mistaken-death child also gets that value (§ 524.2-302(a)(1), (c)). |
| Effect of gifts to existing children | If then-living children received devises, later child shares equally only in those devises (§ 524.2-302(a)(2)(i)–(ii)). |
| Property source and abatement | Existing-child devises abate ratably; intestate-value share follows § 524.3-902's abatement order (§ 524.2-302(a)(2)(iv), (e)). |
| Trust and nonprobate reach | Outside transfer may defeat coverage; existing-child route preserves equitable/legal, present/future character where feasible (§ 524.2-302(b)(2), (a)(2)(iii)). |
Requirements one by one
Eligible children
Section 524.2-302(a) requires a child born or adopted after the will and no provision for that child in it. Subsection (c) separately covers a child alive at execution but omitted solely because the testator believed the child dead. If a qualifying omitted child dies first, subsection (d) gives that child's surviving issue the represented share.
Share amount and source
With no living child at execution, § 524.2-302(a)(1) uses an intestate-equivalent value. If the will devised property to children then living, § 524.2-302(a)(2) limits the pool to those devises and gives the later child an equalized share, counting all omitted later children. The omitted interest must match the existing children's equitable or legal, present or future interest where feasible.
For the no-child and mistaken-death routes, § 524.2-302(e) invokes § 524.3-902(a): undisposed property, residuary devises, general devises, and specific devises, subject to the will's order or a conflicting testamentary purpose under subsection (b). Existing children's devises abate ratably in the child-devise route.
What trips people up
The other-parent exception in § 524.2-302(a)(1) and (c) requires all or substantially all of the estate to pass to that parent, who must survive and be entitled to take. The exception applies to both intestate-value routes.
The exclusions in § 524.2-302(b) differ: an intentional omission must appear from the will, while a transfer outside the will can count if statements, its amount, or other evidence show it was intended in lieu of a testamentary gift.
Common questions
Can descendants of a deceased omitted child take? Yes. Section 524.2-302(d) lets surviving issue who represent that child take the child's share.
Does a living child omitted for another reason get the mistaken-death share? Subsection (c) requires omission solely because the testator believed the child dead; it does not describe a broader living-child omission route.
Statutes and sources
- Minn. Stat. §§ 524.2-302 and 524.3-902. 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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