Omitted or Pretermitted Children Under Wills in Mississippi
At a glance
| Will and child covered | No child living at will: later omitted child affects will's validity; existing child at will: later pretermitted child takes share (§§ 91-5-3, 91-5-5). |
|---|---|
| Birth or adoption timing | Child born after will; § 91-5-3 expressly covers pregnant wife and later posthumous birth. §§ 91-5-3, -5 speak of birth, not adoption. |
| Naming and provision test | No-child branch: future child neither provided for nor mentioned; existing-child branch: later child neither provided for nor disinherited (§§ 91-5-3, 91-5-5). |
| Intentional omission | Express disinheritance defeats existing-child and posthumous pretermitted routes; no-child branch turns on provision or mention (§§ 91-5-3, 91-5-5). |
| Other-parent gifts | Neither § 91-5-3 nor § 91-5-5 states an other-parent devise condition; § 91-5-3 separately addresses pregnancy of testator's wife. |
| Outside gifts and advancements | Settlement for later child defeats pretermitted share when children already existed; same condition applies to posthumous branch (§§ 91-5-3, 91-5-5). |
| Baseline statutory share | No-child branch: will ineffective during child's life and void unless child dies before 21 unmarried and without inheritable issue; other branches use intestate share (§§ 91-5-3, 91-5-5). |
| Effect of gifts to existing children | Having a living child at will execution selects proportional-contribution share route; no existing-child devise pool or equalization formula (§§ 91-5-3, 91-5-5). |
| Property source and abatement | No-child branch: property descends as on intestacy while will ineffective; existing-child/posthumous shares: devisees and legatees contribute proportionately (§§ 91-5-3, 91-5-5). |
| Trust and nonprobate reach | The cited routes expressly address the last will, devised estate, and lifetime settlement (§§ 91-5-3, 91-5-5). |
Requirements one by one
Which will and child
Section 91-5-3 addresses a will made when no child was living. If a later child was neither provided for nor mentioned and survives the testator, the will has no effect during that child's life. The same section expressly includes a testator who leaves a pregnant wife whose child is later born. Section 91-5-5 instead addresses a child born after a will made when the testator already had a child.
Amount and effect
Under § 91-5-3, the no-child-at-making will is void unless the later child dies before 21, unmarried and without issue capable of inheriting. The devised estate descends to that child as on intestacy, subject to the statute's contingent bequests. For an existing-child will, § 91-5-5 gives a qualifying later child the intestate-equivalent portion, raised through proportionate contributions from devisees and legatees. Section 91-5-3 uses that same contribution method for its expressly described posthumous child of a testator who already had children.
What trips people up
The existing-child and posthumous branches require the later child to be unprovided for by settlement, neither provided for nor disinherited by the will, and only pretermitted. The no-child branch instead asks whether a possible future child was provided for or mentioned in the will. Those are different statutory tests.
Common questions
Is age 21 a deadline to bring a claim? Section 91-5-3 uses age 21 as part of the condition concerning the later child's death; the quoted provision does not make it a filing deadline.
How does proportional contribution work? As a simple § 91-5-5 illustration, if two devisees' gifts are worth $60,000 and $40,000, they would bear 60% and 40% of the statutory share being raised from those gifts.
Statutes and sources
- Miss. Code §§ 91-5-3 and 91-5-5. Verbatim current text, section links, 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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