Omitted or Pretermitted Children Under Wills in Virginia

Short answer Virginia gives a qualifying child born or adopted after a will an estate share. If the testator had no children when the will was made, the share matches intestacy; if the will provided for a living child, the later child's share is capped by the larger gift to a named child and by the intestate amount. The will's treatment of the child and, in the second branch, an express exclusion determine eligibility. (Va. Code §§ 64.2-419–420.)
State
Virginia
Statute checked
October 5, 2026
Sources
4 statutes

At a glance

Will and child coveredWill; later-born/adopted child, with descendant language in no-child branch (§§ 64.2-419(A), 64.2-420(A)).
Birth or adoption timingBirth or adoption after will execution (§§ 64.2-419(A), 64.2-420(A)).
Naming and provision testNo-child branch: neither provided for nor mentioned; existing-child branch: neither provided for nor expressly excluded (§§ 64.2-419(A), 64.2-420(A)).
Intentional omissionExpress exclusion defeats existing-child branch; mere mention defeats no-child branch (§§ 64.2-419(A), 64.2-420(A)).
Other-parent giftsShare conditions use will mention/provision/exclusion; no other-parent devise condition in either section (§§ 64.2-419–420).
Outside gifts and advancementsEligibility turns on the will's provision, mention, or express exclusion (§§ 64.2-419(A), 64.2-420(A)).
Baseline statutory shareNo-child branch: intestate share; existing-child branch: lesser of intestacy or largest aggregate named-child gift (§§ 64.2-419(A), 64.2-420(A)).
Effect of gifts to existing childrenWhen will provides for a living child, named-child gifts cap later child's share (§ 64.2-420(A)).
Property source and abatementDevisees/legatees contribute ratably, in kind or money as court deems proper; conditional reversion (§§ 64.2-419(B), 64.2-420(B)).
Trust and nonprobate reachEstate share funded by will devisees and legatees (§§ 64.2-419(B), 64.2-420(B)).

Requirements one by one

Which will branch applies

§ 64.2-419(A) applies where the testator had no children when the will was made. It covers a later-born or later-adopted child who is neither provided for nor mentioned in the will. § 64.2-420(A) instead applies when the will makes provision for a living child; a later child must be neither provided for nor expressly excluded.

Measuring the share

In § 64.2-419(A), the later child's share is what the child would have received in intestacy. § 64.2-420(A) uses the lesser of the intestate share and an amount equivalent to a named child's bequests and devises. If several named children receive gifts, it uses the largest aggregate gift to any one of them. That is a cap, not an equal redivision of only the existing children's gifts.

Source and contribution

§ 64.2-419(B) and § 64.2-420(B) require will devisees and legatees to contribute ratably. The court may direct contribution in property or money.

What trips people up

The two thresholds use different words: “mentioned” in § 64.2-419(A) and “expressly excluded” in § 64.2-420(A). A will that merely mentions a later child can therefore matter differently depending on whether the will provided for a living child when signed.

Common questions

Can a descendant of the later-born child qualify? § 64.2-419(A) expressly includes a descendant in the no-children-at-execution branch, subject to its will-treatment condition.

What happens to an unspent share if the child dies young? § 64.2-419(B) and § 64.2-420(B) direct it back to the persons who gave under the will if the child dies unmarried, without issue, and before age 18.

Statutes and sources

  • Va. Code §§ 64.2-419–420. Verbatim current 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.

Va. Code § 64.2-419(A) · accessed 2026-10-05
Va. Code § 64.2-419(B) · accessed 2026-10-05
Va. Code § 64.2-420(A) · accessed 2026-10-05
Va. Code § 64.2-420(B) · accessed 2026-10-05
This page gives general information about omitted-child statutes, not advice about a particular child, will, or estate. The will's words, other law, and the facts can change the result. Check current official law and consult a licensed adviser before acting.

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