Omitted or Pretermitted Children Under Wills in New York
At a glance
| Will and child covered | Last will; child born after its execution and omitted from mention/provision (§ 5-3.2(a)). |
|---|---|
| Birth or adoption timing | Born during testator's life after will, or in gestation at death and later born; statute does not name adoption (§ 5-3.2(b)). |
| Naming and provision test | No settlement, will provision, or any will mention for the after-born child (§ 5-3.2(a)). |
| Intentional omission | No separate general intent exception in § 5-3.2; will terms limiting gifts to then-living children change share calculation (§ 5-3.2(a)(1)(B)(iii)). |
| Other-parent gifts | § 5-3.2 states no separate other-parent devise exception. |
| Outside gifts and advancements | A settlement for the child defeats the threshold; § 5-3.2 does not set a general outside-gift credit. |
| Baseline statutory share | No child living at will execution: intestate share; with benefited living children: equalized share of their will gifts (§ 5-3.2(a)). |
| Effect of gifts to existing children | If living children existed but none benefited, no share; if some benefited, share their will gifts unless will specifically limited them to then-living children (§ 5-3.2(a)(1)). |
| Property source and abatement | Ratable recovery from other children or testamentary beneficiaries, preserving testamentary plan as far as possible (§ 5-3.2(c)). |
| Trust and nonprobate reach | § 5-3.2 addresses the will and settlement threshold; no express trust or beneficiary-designation share formula there. |
Requirements one by one
Who qualifies
§ 5-3.2(a) starts with a child born after execution of the last will, who is unprovided for by any settlement and neither provided for nor in any way mentioned in the will. Subdivision (b) includes a child born during the testator's lifetime or in gestation at death and born afterward. It also cross-references § 4-1.2 for establishing paternal status of a nonmarital after-born child.
Three share branches
If the testator had living children when the will was signed but provided for none of them, § 5-3.2(a)(1)(A) gives the after-born child no share. If the will benefited at least one then-living child, § 5-3.2(a)(1)(B) generally limits the new child's share to the gifts made to children, divided as though all after-born children had been added and given equal shares. The new interest keeps the character of the other children's interests where feasible.
An important exception in § 5-3.2(a)(1)(B)(iii) changes that result: if the will shows that a limited provision was specifically meant only for children living at execution, the after-born child receives the share that would have passed on intestacy. Section 5-3.2(a)(2) also uses an intestate share if no child was living when the will was signed.
Recovery source
Under § 5-3.2(c), the after-born child recovers ratably from the other children in the benefited-child branch, or from testamentary beneficiaries in the no-living-child branch. The character of the will's plan must be preserved to the maximum extent possible.
What trips people up
Having older children changes the calculation in two different ways: no benefit to any then-living child means no after-born share, while benefits to some usually define the fund the new child shares (§ 5-3.2(a)(1)). A settlement for the after-born child is a separate threshold condition under the opening clause.
Common questions
Does a child born after the testator's death qualify? Section 5-3.2(b) includes a child in gestation at death who is born afterward.
Does a will provision for a trust automatically determine this share? Section 5-3.2 addresses the will and a settlement threshold; it supplies no separate trust or beneficiary-designation formula.
Does the statute name an adoption route? Its definition speaks of a child born after execution (§ 5-3.2(b)); it does not state an adoption trigger in this section.
Statutes and sources
- N.Y. EPTL § 5-3.2. The verbatim official excerpt, 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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