Omitted or Pretermitted Children Under Wills in Nebraska
At a glance
| Will and child covered | Later-born/adopted child not provided for; living child omitted solely from mistaken belief of death (§ 30-2321(a)–(b)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death route concerns child living at execution (§ 30-2321(a)–(b)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death route requires omission solely from belief child was dead (§ 30-2321(a)–(b)). |
| Intentional omission | Later-child share excluded if omission appears intentional from will (§ 30-2321(a)(1)). |
| Other-parent gifts | At execution testator had child and devised substantially all estate to omitted child's other parent; no survival/taking condition stated (§ 30-2321(a)(2)). |
| Outside gifts and advancements | Outside transfer defeats later-child share if worth at least child's intestate share; no in-lieu intent test stated (§ 30-2321(a)(3)). |
| Baseline statutory share | Value of intestate share for qualifying later child or child omitted through mistaken death (§ 30-2321(a), (b)). |
| Effect of gifts to existing children | Existing child at execution is condition for other-parent exception; no then-living-child devise pool in § 30-2321(a). |
| Property source and abatement | Undevised property, residue, general devises, then specific devises; order can yield to will's plan (§§ 30-2321(c), 30-24,100(a)–(b)). |
| Trust and nonprobate reach | Outside property transfer of sufficient value defeats later-child will share (§ 30-2321(a)(3)). |
Requirements one by one
Covered child
Section 30-2321(a) covers a child born or adopted after the will whom the will fails to provide for. Under § 30-2321(b), a child already living when the will was signed is separately covered if omission was solely because the testator believed that child dead. Each route uses the value of an intestate share.
Property used for the share
Under § 30-2321(c), will devises abate according to § 30-24,100(a): first property not disposed of by the will, then residuary, general, and specific devises. There is no real-property priority over personal property in that ordering.
What trips people up
The other-parent exception in § 30-2321(a)(2) applies when the testator already had one or more children at execution and devised substantially all the estate to the omitted child's other parent. It does not state that parent must survive or take. The outside-transfer exception in subsection (a)(3) uses a value test: the transfer must equal or exceed the child's intestate share. The section does not require a statement that the transfer replaces a will gift.
Common questions
Can the will change the default abatement order? Yes. Section 30-24,100(b) follows an expressed order or adjusts it when the default would defeat the will's plan or a devise's purpose.
How does a general devise charged on a particular fund abate? Section 30-24,100(a) treats it as specific up to that fund's value and general for any shortfall.
Statutes and sources
- Neb. Rev. Stat. §§ 30-2321 and 30-24,100. 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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