Omitted or Pretermitted Children Under Wills in New Jersey
At a glance
| Will and child covered | Will; later-born/adopted child or living child wrongly believed dead (§ 3B:5-16(a), (c)). |
|---|---|
| Birth or adoption timing | Birth/adoption after execution; mistaken-death child living at execution (§ 3B:5-16(a), (c)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death omission has separate cause test (§ 3B:5-16(a), (c)). |
| Intentional omission | No afterborn share if intent to omit appears from will (§ 3B:5-16(b)(1)). |
| Other-parent gifts | No intestate branch if other parent survives and takes all/substantially all, directly or via primarily-benefiting trust (§ 3B:5-16(a)(1)). |
| Outside gifts and advancements | Outside transfer substitutes if statements, amount, or other evidence show in-lieu intent (§ 3B:5-16(b)(2)). |
| Baseline statutory share | No living child at execution: intestate-equivalent value, subject to other-parent exception (§ 3B:5-16(a)(1)). |
| Effect of gifts to existing children | Then-living children's will devises form equal-share pool for omitted later children (§ 3B:5-16(a)(2)). |
| Property source and abatement | Existing children's devises abate ratably; intestate branch abates all will devisees proportionally (§ 3B:5-16(a)(2)(d), (d)). |
| Trust and nonprobate reach | Other-parent trust devise can defeat share; outside-will transfer requires in-lieu intent (§ 3B:5-16(a)(1), (b)(2)). |
Requirements one by one
Which child is covered
§ 3B:5-16(a) covers a child born or adopted after the will was executed and not provided for in the will. Subsection (c) also covers a child living at execution whom the testator omitted solely because the testator believed the child dead. That child shares as if later born or adopted.
Two measures of the share
When no child lived at execution, § 3B:5-16(a)(1) uses the value of the omitted child's intestate share, subject to the other-parent exception. If a then-living child received a devise, subsection (a)(2) instead limits the later child's pool to those children's will devises. It computes an equal share as though all omitted later children were included and preserves, where feasible, the legal or equitable, present or future character of the existing gifts.
Will intent and outside transfers
The two later-child share branches yield if intent to omit appears from the will (§ 3B:5-16(b)(1)). A transfer outside the will also displaces them if statements show it was intended in lieu of a testamentary provision, or its amount or other evidence reasonably implies that purpose (§ 3B:5-16(b)(2)).
Paying the share
For the existing-child branch, § 3B:5-16(a)(2)(d) reduces the then-living children's devises ratably while preserving the testamentary plan as far as possible. For the intestate-comparison branch, subsection (d) directs a ratable, proportional contribution from devisees under the will.
What trips people up
The other-parent exception includes a trust primarily for that parent's benefit as well as a direct devise. § 3B:5-16(a)(1) also requires the parent to survive the testator and be entitled to take under the will; it is tied to the no-child-living-at-execution branch.
Common questions
Can a child believed dead at execution claim? § 3B:5-16(c) says yes when that belief was the sole reason the will did not provide for the living child.
Is an outside gift enough by itself? § 3B:5-16(b)(2) requires an intent to substitute it for a will provision, shown or reasonably inferred from the evidence it names.
Statutes and sources
- N.J. Stat. § 3B:5-16. 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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