Omitted or Pretermitted Children Under Wills in Montana

Short answer A Montana child born or adopted after a will can receive a share when the will fails to provide for the child, unless a stated exception applies. With no child living when the will was executed, the share is intestate-equivalent; if the will made gifts to then-living children, the new child shares only in those gifts. A living child omitted solely because the testator believed the child dead is treated as an omitted later child. (Mont. Code Ann. § 72-2-332.)
State
Montana
Statute checked
October 5, 2026
Sources
2 statutes

At a glance

Will and child coveredOmitted afterborn or after-adopted child; living child mistakenly believed dead also covered (§ 72-2-332(1), (3)).
Birth or adoption timingBirth or adoption after will execution; mistaken-death rule covers child living then (§ 72-2-332(1), (3)).
Naming and provision testWill fails to provide for later child; living-child route requires omission solely from mistaken death belief (§ 72-2-332(1), (3)).
Intentional omissionNo share under either later-child route if intent to omit appears from will (§ 72-2-332(2)(a)).
Other-parent giftsNo-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 72-2-332(1)(a)).
Outside gifts and advancementsOutside 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 shareNo child living at execution: intestate-equivalent value, subject to other-parent exception (§ 72-2-332(1)(a)).
Effect of gifts to existing childrenIf then-living children received will gifts: equalized share drawn only from those gifts (§ 72-2-332(1)(b)(i)–(ii)).
Property source and abatementNo-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 reachEarlier 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.

Mont. Code Ann. § 72-2-332 · accessed 2026-10-05
Mont. Code Ann. § 72-3-901 · accessed 2026-10-05
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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