Omitted or Pretermitted Children Under Wills in North Carolina
At a glance
| Will and child covered | Will; later-born, later-adopted, or later-entitled after-born child (§ 31-5.5(a), (c)). |
|---|---|
| Birth or adoption timing | Birth, adoption, or heir entitlement after will execution (§ 31-5.5(c)). |
| Naming and provision test | Any will provision for the child, however inadequate, defeats share (§ 31-5.5(a)(1)). |
| Intentional omission | Intentional nonprovision must be apparent from the will itself (§ 31-5.5(a)(2)). |
| Other-parent gifts | No share if surviving spouse receives the entire estate under the will (§ 31-5.5(a)(4)). |
| Outside gifts and advancements | Any provision for child effective at death defeats share, even if inadequate (§ 31-5.5(a)(5)). |
| Baseline statutory share | Same share child would receive if testator died intestate (§ 31-5.5(a)). |
| Effect of gifts to existing children | No share if children lived at execution and none actually take under will (§ 31-5.5(a)(3)). |
| Property source and abatement | Undevised property first; deficiency from devises in statutory ratio (§ 28A-22-2). |
| Trust and nonprobate reach | Will provision or any provision effective at death defeats share; no instrument type specified (§ 31-5.5(a)(1), (5)). |
Requirements one by one
Which later children qualify
Section 31-5.5(c) defines its three timing terms by events subsequent to execution of the will: the child is born, adopted, or becomes entitled as an after-born child. For a child born outside marriage, subsection (a) ties entitlement to the separate heir-status rule in G.S. 29-19(b); this page does not decide that status. A later qualifying event does not revoke the will.
Will provisions and intentional omission
The statute counts “some provision in the will for the child, whether adequate or not” (§ 31-5.5(a)(1)). A child also does not receive this share when an intentional decision not to make specific provision is apparent from the will itself (§ 31-5.5(a)(2)). Subsection (a)(5) separately counts provision for the child that takes effect at the testator's death, regardless of adequacy.
Share and property source
For a covered child, § 31-5.5(a) uses what the child would have received had the testator died intestate. § 28A-22-2 directs payment first from undevised real or personal property. If that is short, devised property supplies the deficiency; each devisee's contribution bears the statutory ratio to that devisee's devise. § 31-5.5(b) applies this allocation to the listed after-adopted and after-born children.
What trips people up
The surviving-spouse exception turns on whether the spouse receives all of the estate under the will (§ 31-5.5(a)(4)); the text does not condition it on the spouse being the child's other parent. An existing-children exception also requires both children living when the will was executed and that none actually take under it (§ 31-5.5(a)(3)).
Common questions
Does a later birth or adoption cancel the entire will? No. Section 31-5.5(a) says that those events do not revoke it; the statute instead supplies a share when its conditions are met.
What if the child becomes entitled to inherit only after the will was signed? Section 31-5.5(a) includes an after-born child born outside marriage who later becomes entitled to take as an heir under G.S. 29-19(b). The entitlement itself must follow execution under subsection (c).
Statutes and sources
- N.C. Gen. Stat. §§ 31-5.5 and 28A-22-2. Verbatim 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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