Omitted or Pretermitted Children Under Wills in Ohio

At a glance

Requirements one by one

Covered changes after a will

§ 2107.34(A) covers a later child born alive, a later adoption, designation of an heir under the referenced statute, or an absent child or designated heir reported dead who proves alive. The threshold also requires no will or settlement provision for that person or their issue. If the person dies before the testator, their issue receives the parent's share.

Will intent, share, and source

The default yields if the will shows an intention to disinherit (§ 2107.34(A)). Otherwise nonspouse devises and legacies abate proportionately, or in another way needed to honor the will's shown intention. The target share assumes the testator died intestate without a surviving spouse, owning only the estate property not devised or bequeathed to or for the spouse. Although measured by the intestacy chapter, § 2107.34(D) calls the result a testate succession.

For a person believed dead when the will was signed, § 2107.34(B) has a special rule if the testator provided for that person's lineal descendants: other beneficiaries need not contribute, and the person takes the descendants' provision or an equitable part of it. The same subsection charges an advancement received by an interested party to that party when settling the claim.

Posthumous birth and trusts

§ 2107.34(C) generally blocks a person born more than 300 days after the testator's death from inheriting under the will as a child or heir. A will that clearly provides otherwise permits the inheritance only if birth is within one year and 300 days after death. The subsection expressly excludes testamentary trust terms. Separately, § 5801.12 governs trust beneficial rights of children born through assisted reproductive technologies, including a 300-day default, express-term alternatives, and a five-year maximum for a trust-specified period. It also addresses trust appointment powers.

What trips people up

A settlement for the child or their issue matters at the threshold (§ 2107.34(A)); an advancement to an interested party is handled later as a charge in the claim (§ 2107.34(B)). They are different statutory mechanisms. The posthumous-birth window for a will also differs from the separate trust timing scheme.

Common questions

Can the omitted child's own children take if that child dies before the testator? Yes. Section 2107.34(A) directs the deceased child's issue to receive the parent's share.

Does a gift to a surviving spouse abate for this share? No. Section 2107.34(A) excludes devises and legacies to a surviving spouse from abatement and from the comparison property.

Does a revocable trust automatically owe the will's omitted-child share? Section 2107.34 states a will rule; § 5801.12 separately addresses children born through assisted reproductive technologies under trusts. Neither section supplies a general trust omitted-child formula.

Statutes and sources

• Ohio Rev. Code §§ 2107.34 and 5801.12. Verbatim enacted excerpts, section URLs, and access dates appear in the source fields above.