Omitted or Pretermitted Children Under Wills in New Hampshire
At a glance
| Will and child covered | Omitted later-born or later-adopted child; living child omitted solely through mistaken belief of death (§ 551:10(II), (IV)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death rule covers child living then (§ 551:10(II), (IV)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death omission must be solely from belief child was dead (§ 551:10(II), (IV)). |
| Intentional omission | Either later-child share fails if intent to omit appears from will (§ 551:10(III)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 551:10(II)(a)). |
| Outside gifts and advancements | Section 551:10 lists no outside-transfer or advancement condition; it turns on will provision and stated exceptions (§ 551:10(II)–(IV)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 551:10(II)(a)). |
| Effect of gifts to existing children | If then-living children received will gifts, later child shares only in those gifts on equalized-child basis (§ 551:10(II)(b)(1)–(2)). |
| Property source and abatement | No-child share: residue first, then other estate assets pro rata; child-gift route: then-living children's gifts abate ratably (§ 551:10(II)(a), (b)(4)). |
| Trust and nonprobate reach | Estate means probate property disposed under will; child-gift route preserves equitable/legal, present/future gift character where feasible (§ 551:10(I), (II)(b)(3)). |
Requirements one by one
Which child qualifies
Under § 551:10(II), the ordinary route covers a child born or adopted after execution who received no will provision. Section IV also treats an already-living child as an omitted later child when the testator left the child out solely because the testator believed the child was dead.
Share and contribution
When no child lived at execution, § 551:10(II)(a) measures an intestate-equivalent share. The residue pays first; any shortfall comes pro rata from other estate assets. If the will gave property to children living at execution, subsection II(b) instead limits the later child's pool to those gifts and equalizes it as though all omitted later children had been included. Those gifts abate ratably, preserving the will's plan as far as possible.
What trips people up
The other-parent exception applies to the no-child route only and requires that parent to survive and be entitled to take an all-or-substantially-all devise. Intentional omission must appear from the will under § 551:10(III). The statute defines “estate” as property subject to probate administration and disposition under the will; it does not itself assign a recovery route against other property.
Common questions
Does an outside gift automatically replace the statutory share? Section 551:10 sets no outside-transfer test among its stated conditions; its later-child rules address will provision, intentional omission, and the other-parent exception.
Can the later child's gift be a future trust interest? For the existing-child gift route, § 551:10(II)(b)(3) directs that the omitted child's interest match the earlier children's equitable or legal, present or future interest to the extent feasible.
Statutes and sources
- N.H. Rev. Stat. § 551:10. Verbatim current text, official section URL, and access date appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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