Omitted or Pretermitted Children Under Wills in Montana
At a glance
| Will and child covered | Omitted afterborn or after-adopted child; living child mistakenly believed dead also covered (§ 72-2-332(1), (3)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death rule covers child living then (§ 72-2-332(1), (3)). |
| Naming and provision test | Will fails to provide for later child; living-child route requires omission solely from mistaken death belief (§ 72-2-332(1), (3)). |
| Intentional omission | No share under either later-child route if intent to omit appears from will (§ 72-2-332(2)(a)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 72-2-332(1)(a)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent shown by statements or reasonably inferred from amount or other evidence (§ 72-2-332(2)(b)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 72-2-332(1)(a)). |
| Effect of gifts to existing children | If then-living children received will gifts: equalized share drawn only from those gifts (§ 72-2-332(1)(b)(i)–(ii)). |
| Property source and abatement | No-child route uses § 72-3-901 order; earlier children's gifts abate ratably in child-gift route (§ 72-2-332(1)(b)(iv), (4)). |
| Trust and nonprobate reach | Earlier child-gift character preserved where feasible; outside transfer may defeat share under in-lieu test (§ 72-2-332(1)(b)(iii), (2)(b)). |
Requirements one by one
Child and share
Montana's § 72-2-332(1) covers a child born or adopted after will execution and omitted from its provisions. Subsection (3) extends that treatment to a child living at execution who was omitted solely because the testator believed the child dead. When no child lived at execution, the starting value is an intestate-equivalent share. When the will gave property to then-living children, the later child's pool is those gifts, equalized as if all omitted later children had been included.
Property used
The then-living children's gifts abate ratably under § 72-2-332(1)(b)(iv), with the will's plan preserved as far as possible. The no-child route uses § 72-3-901's order: undisposed property, residuary gifts, general gifts, then specific gifts, subject to the will's intent.
What trips people up
The other-parent exception requires an all-or-substantially-all devise to the omitted child's other parent, who must survive and be entitled to take. Either route fails if intent to omit appears from the will or an outside transfer was intended to replace a will provision under § 72-2-332(2).
Common questions
Does a lifetime gift necessarily disqualify the child? The transfer must be intended in lieu of a testamentary provision; statements, amount, or other evidence may show that intent (§ 72-2-332(2)(b)).
Can the child's interest be a future trust interest? Section 72-2-332(1)(b)(iii) directs the omitted child's share to match the equitable or legal, present or future character of the earlier children's gifts where feasible.
Statutes and sources
- Mont. Code Ann. §§ 72-2-332 and 72-3-901. 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.
What does Montana law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Montana law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace