Omitted or Pretermitted Children Under Wills in West Virginia
At a glance
| Will and child covered | Child born after will, or descendant, under separate no-child and existing-child routes (§§ 41-4-1, 41-4-2). |
|---|---|
| Birth or adoption timing | Birth after will; § 41-4-1 expressly includes a pregnant wife whose child is born alive. These sections speak of birth (§§ 41-4-1, -2). |
| Naming and provision test | No-child route: possible future child neither provided for nor mentioned; existing-child route: later child neither provided for nor expressly excluded (§§ 41-4-1, -2). |
| Intentional omission | Existing-child route excludes child expressly excluded by will; no-child route turns on provision or mention (§§ 41-4-1, -2). |
| Other-parent gifts | No other-parent devise condition in §§ 41-4-1 or -2; § 41-4-1 separately covers a pregnant wife. |
| Outside gifts and advancements | Settlement for later child defeats existing-child pretermitted share; § 41-4-1 states no settlement test (§§ 41-4-1, -2). |
| Baseline statutory share | Intestate-equivalent portion for qualifying child or descendant under either route (§§ 41-4-1, -2). |
| Effect of gifts to existing children | Whether a child lived when will was made selects route; both use intestate portion, not a then-living-child gift pool (§§ 41-4-1, -2). |
| Property source and abatement | Devisees and legatees contribute ratably, in kind or money as court deems proper; remaining portion reverts on specified under-18 death (§§ 41-4-1, -2). |
| Trust and nonprobate reach | The cited rules address will gifts and, for existing-child wills, outside settlement (§§ 41-4-1, -2). |
Requirements one by one
Which will and child
Section 41-4-1 applies when the testator had no child living when the will was made. It expressly covers a child later born alive to the testator's pregnant wife. Under § 41-4-2, a child was already living and another child was born afterward. Both let a qualifying descendant take the later child's place under the stated wording.
Amount and contribution
Each section measures the later child's portion as on intestacy. Under §§ 41-4-1 and 41-4-2, devisees and legatees contribute ratably from their will gifts; the court may choose contribution in kind or in money for the particular case.
What trips people up
The no-child route asks whether a possible future child was provided for or mentioned. The existing-child route instead requires the later child to be unprovided for by settlement, not provided for by the will, and not expressly excluded by it. Applying one branch's tests to the other changes the answer.
Common questions
How would ratable contribution be divided? As a simple illustration, devisees receiving $60,000 and $40,000 in will gifts would contribute 60% and 40% of the share; §§ 41-4-1 and 41-4-2 let the court choose payment in kind or money.
What happens if the later child dies young? If the child or descendant dies before 18, unmarried and without issue, the portion still unspent on support and education reverts to those given it by the will (§§ 41-4-1, 41-4-2).
Statutes and sources
- W. Va. Code §§ 41-4-1 and 41-4-2. 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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