Omitted or Pretermitted Children Under Wills in Washington
At a glance
| Will and child covered | Will; later-born/adopted child who survives decedent (§ 11.12.091(1)). |
|---|---|
| Birth or adoption timing | Born or adopted after will execution; child must survive (§ 11.12.091(1)). |
| Naming and provision test | Name or future-child class counts; heirs/family class does not; nominal interest is not provision (§ 11.12.091(2)). |
| Intentional omission | Will or other clear-and-convincing evidence may show intentional failure (§ 11.12.091(1)). |
| Other-parent gifts | Other-parent provisions are evidence court may consider, not a categorical bar (§ 11.12.091(3)). |
| Outside gifts and advancements | Outside-will child benefits may support a smaller share; court weighs intent by clear-and-convincing evidence (§ 11.12.091(3)). |
| Baseline statutory share | Value of intestate share under RCW 11.04.015, subject to court reduction to zero (§ 11.12.091(3)). |
| Effect of gifts to existing children | Will and outside benefits to other children are circumstances for court review (§ 11.12.091(3)). |
| Property source and abatement | Will bequests abate under chapter 11.10: intestate, residuary, general, then specific, subject to intent (§§ 11.12.091(4), 11.10.010). |
| Trust and nonprobate reach | Outside-will benefits affect share assessment; nonprobate abatement depends on same-obligation test (§§ 11.12.091(3), 11.10.040(3)). |
Requirements one by one
Naming and provision
§ 11.12.091(2) treats identification by name as naming even without calling the person a child. A class reference to the testator's children, descendants, or issue born after execution also names a class member. A nominal interest is not provision, although another form of naming in the same will still matters.
Intent and amount
Under § 11.12.091(1), the will or other clear and convincing evidence can establish that the failure to name or provide for the child was intentional. If the child qualifies, subsection (3) starts with the value of the child's intestate share. The court may reduce it, including to zero, only on clear and convincing evidence that a smaller share better matches the decedent's intent. The court may consider the overall plan and benefits to the omitted child, other children, and the child's other parent, inside or outside the will.
Share source
§ 11.12.091(4) sends will bequests to Chapter 11.10's abatement rules. § 11.10.010(1) orders intestate property, residuary gifts, general gifts, then specific gifts, with proportional reduction within a class. Subsection (2) permits a different order to give effect to the will or testamentary plan.
What trips people up
A benefit outside the will is a circumstance the court may consider under § 11.12.091(3); it is not automatically credited dollar for dollar or a categorical bar. The same is true of provision for the child's other parent. For nonprobate assets, § 11.10.040(3) makes abatement conditional on the asset being subject to the same obligations as will assets; these provisions do not decide that condition for a particular asset.
Common questions
Must the child live longer than the decedent? Yes. § 11.12.091(1) includes survival in the definition of an omitted child.
Does a will reference to “my heirs” name a future child? No. § 11.12.091(2)(b) distinguishes an heirs or family class from a class of children, descendants, or issue born after execution.
Statutes and sources
- Wash. Rev. Code §§ 11.12.091, 11.10.010, and 11.10.040. 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.
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