Omitted or Pretermitted Children Under Wills in Texas

At a glance

Requirements one by one

Which children qualify

§ 255.051 defines a pretermitted child as the testator's child born or adopted after the will was executed, during the testator's lifetime or after death. Under § 255.052, this subchapter's share is available only if the child was not mentioned in the will, provided for there, or otherwise provided for. A vested or contingent gift for the child in the will, including a gift to a trustee, counts as provision. So does an outside-will disposition intended to take effect at the testator's death.

Two ways to calculate the share

If the will did not provide for any child living when it was signed, § 255.053(a) compares the omitted child's share with what the child would have received under § 201.001 if the testator had died intestate without a surviving spouse. § 255.054 uses that comparison when no child was living at execution. Section 201.001(b) directs a no-spouse intestate estate to the decedent's children and their descendants. Both omitted-child provisions exclude the portion devised to the child's other parent and are subject to the spouse limit in § 255.056.

If the will did provide for one or more children living at execution, § 255.053(b) instead limits the new child to an equalized portion of the will's gifts to those children. The comparison adds all pretermitted children to the children benefited under the will and assumes equal shares of those benefits. To the extent feasible, § 255.053(c) keeps the new child's interest of the same character as the existing children's interests.

Where the share comes from

§ 255.055 allows ratable recovery from the benefited children in the second calculation, or from other testamentary beneficiaries in the intestacy-comparison cases. It excludes the omitted child's other parent from recovery and directs preservation of the will's plan as far as possible. Under § 255.056, when that other parent is not the testator's surviving spouse, the intestacy-comparison share may not reduce the estate passing to the surviving spouse by more than one-half.

What trips people up

A child can qualify by birth after the testator dies if the birth followed will execution (§ 255.051). Also, an outside-will benefit matters under § 255.052 only when the disposition is intended to take effect at death; the section does not set a general lifetime-gift credit.

Common questions

Does every unnamed child receive an intestate share? No. The timing and provision tests in §§ 255.051–.052 apply first, and § 255.053(b) uses the existing children's will gifts when that branch applies.

Can a trust gift count as provision? Yes, when the will makes a qualifying disposition to a trustee for the child's benefit (§ 255.052(b)); this does not decide the child's rights under a separate trust.

Can other evidence of intent alone eliminate the share? Sections 255.051–.056 do not state a separate intent-only exception; § 255.052 uses mention and provision tests.

Statutes and sources

• Tex. Est. Code §§ 201.001 and 255.051–.056. Verbatim official excerpts, chapter URLs, and access dates appear in the source fields above.