Omitted or Pretermitted Children Under Wills in Utah
At a glance
| Will and child covered | Later-born/adopted child omitted from will; living child omitted solely through mistaken belief of death (§ 75-2-302(1), (3)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; separate mistaken-death route for a child already living (§ 75-2-302(1), (3)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death route requires omission solely from belief child was dead (§ 75-2-302(1), (3)). |
| Intentional omission | Later-child share excluded if intentional omission appears from will (§ 75-2-302(2)(a)). |
| Other-parent gifts | No-child-at-execution share excluded if substantially all estate devised to other parent, who survives and can take (§ 75-2-302(1)(a)). |
| Outside gifts and advancements | Outside transfer defeats later-child share if intended in lieu of will gift, shown by statements, amount, or other evidence (§ 75-2-302(2)(b)). |
| Baseline statutory share | No living child at execution: intestate-equivalent value, subject to other-parent exception (§ 75-2-302(1)(a)). |
| Effect of gifts to existing children | If then-living children received devises, later child shares equally in their devise pool; same interest character where feasible (§ 75-2-302(1)(b)(i)–(iii)). |
| Property source and abatement | Existing-child devises abate ratably; intestate-value branch uses § 75-3-902 order, starting with undevised property (§§ 75-2-302(1)(b)(iv), (4); 75-3-902(1)). |
| Trust and nonprobate reach | Outside transfer may defeat coverage; existing-child share preserves equitable/legal and present/future character where feasible (§ 75-2-302(2)(b), (1)(b)(iii)). |
Requirements one by one
Covered child
Section 75-2-302(1) covers a child born or adopted after the will was executed whom the will fails to provide for. Subsection (3) separately treats a child already living at execution as an omitted later child if the omission was solely because the testator believed that child dead.
Amount and source
If no child was living at execution, § 75-2-302(1)(a) gives the omitted child the value of an intestate share. Under subsection (4) and § 75-3-902(1), property not disposed of by the will abates first, followed by residuary, general, and specific devises.
If children were living and received devises under the will, § 75-2-302(1)(b) instead limits the omitted child's pool to those devises. It calculates an equal child share as if all omitted later children had been included. Those existing-child devises abate ratably, and the new interest keeps their equitable or legal and present or future character where feasible.
What trips people up
The other-parent exception to the intestate-value branch requires all or substantially all of the estate to be devised to that parent, who must survive and be entitled to take under the will. Under § 75-2-302(2), an outside transfer defeats the later-child share only when statements, amount, or other evidence establish that it was meant in lieu of a will provision.
Common questions
What if a general gift is charged on a particular asset? Section 75-3-902(2) treats it as a specific devise up to that asset's value and as a general devise for any shortfall.
Can the will change the abatement order? Section 75-3-902(3) follows an order stated in the will, or another order needed to give effect to the testator's plan or a devise's purpose.
Statutes and sources
- Utah Code §§ 75-2-302 and 75-3-902. Verbatim current text, official chapter URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Utah law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Utah law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace