Omitted or Pretermitted Children Under Wills in Tennessee
At a glance
| Will and child covered | Will; child born after its making and neither provided for nor disinherited (§ 32-3-103(a)). |
|---|---|
| Birth or adoption timing | Born after will, before or after testator's death; section does not resolve adoption status (§ 32-3-103(a)). |
| Naming and provision test | Must be pretermitted: neither provided for nor disinherited in will (§ 32-3-103(a)). |
| Intentional omission | Express disinheritance in will defeats pretermitted status; section states no outside-evidence test (§ 32-3-103(a)). |
| Other-parent gifts | No separate other-parent exception stated; devisees, legatees, and other heirs contribute proportionally (§ 32-3-103(a)–(b)). |
| Outside gifts and advancements | Lifetime settlement for child defeats share; settlements upon others enter contribution measure (§ 32-3-103(a)–(b)). |
| Baseline statutory share | Same portion as if testator died intestate (§ 32-3-103(a)). |
| Effect of gifts to existing children | No special existing-child pool; other heirs and beneficiaries contribute in proportion to devises, legacies, or settlements (§ 32-3-103(b)). |
| Property source and abatement | Devisees, legatees, and other heirs contribute from devised, bequeathed, or settled parts proportionally (§ 32-3-103(b)). |
| Trust and nonprobate reach | Section addresses wills and expressly counts lifetime settlements; it does not itself determine trust or other nonprobate recovery (§ 32-3-103(a)–(b)). |
Requirements one by one
Child and will threshold
Section 32-3-103(a) expressly includes a child born after the will before or after the testator's death, including a mother-testator's posthumously born child. The child must be neither provided for nor disinherited in the will and must lack a lifetime settlement from the testator. The provision speaks in terms of birth; it does not itself decide a particular adoption question.
Measure and contribution
The qualifying child receives the same portion as in intestacy under § 32-3-103(a). § 32-3-103(b) directs devisees, legatees, and other heirs to contribute from property devised, bequeathed, or settled upon them, in proportion to their respective devises, legacies, or settlements measured against the whole estate. It gives no special pool limited to gifts made to children living when the will was signed.
What trips people up
A lifetime settlement for the omitted child is an express bar under § 32-3-103(a). A settlement upon someone else appears separately in subsection (b)'s contribution formula. A gift to the child's other parent is not a separate exception in this section; the contribution direction includes devisees, legatees, and other heirs.
Common questions
Can a child born after the testator died qualify? Yes. Section 32-3-103(a) says “either before or after the death of the testator.”
Does this section decide a claim against a separate trust? It refers to a will and counts certain settlements in the contribution measure. It does not itself state a general trust or nonprobate recovery rule.
Statutes and sources
- Tenn. Code Ann. § 32-3-103. Verbatim text, 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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