Omitted or Pretermitted Children Under Wills in Virginia
At a glance
| Will and child covered | Will; later-born/adopted child, with descendant language in no-child branch (§§ 64.2-419(A), 64.2-420(A)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution (§§ 64.2-419(A), 64.2-420(A)). |
| Naming and provision test | No-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 omission | Express exclusion defeats existing-child branch; mere mention defeats no-child branch (§§ 64.2-419(A), 64.2-420(A)). |
| Other-parent gifts | Share conditions use will mention/provision/exclusion; no other-parent devise condition in either section (§§ 64.2-419–420). |
| Outside gifts and advancements | Eligibility turns on the will's provision, mention, or express exclusion (§§ 64.2-419(A), 64.2-420(A)). |
| Baseline statutory share | No-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 children | When will provides for a living child, named-child gifts cap later child's share (§ 64.2-420(A)). |
| Property source and abatement | Devisees/legatees contribute ratably, in kind or money as court deems proper; conditional reversion (§§ 64.2-419(B), 64.2-420(B)). |
| Trust and nonprobate reach | Estate 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.
What does Virginia law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Virginia 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