Omitted or Pretermitted Children Under Wills in Wisconsin
At a glance
| Will and child covered | Omitted later-born/adopted child; living child or issue of deceased child omitted by proved mistake (§ 853.25(1)(a), (2)(a)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; living child and issue of then-deceased child covered if mistakenly omitted (§ 853.25(1)(a), (2)(a)). |
| Naming and provision test | Will must fail to provide for child; mere failure to mention living child does not prove mistake (§ 853.25(1)(a), (2)(b)). |
| Intentional omission | Intentional omission may appear from will or other evidence; living-child mistake needs clear and convincing proof (§ 853.25(1)(a)1., (2)(a)). |
| Other-parent gifts | No-child-at-execution share excluded if substantially all estate goes to other parent, who survives and can take (§ 853.25(1)(b)). |
| Outside gifts and advancements | Outside transfer defeats later child's share if intended in lieu of will provision; intent shown by statements or inferred (§ 853.25(1)(a)2.). |
| Baseline statutory share | No living child at execution: value of intestate share under ch. 852; court may adjust amount or form (§ 853.25(1)(b), (5)). |
| Effect of gifts to existing children | If living children received devises, omitted child shares equally in those devises, with all omitted later children counted (§ 853.25(1)(c)1.–2.). |
| Property source and abatement | No-child share: intestate property first, then proportional devises; existing-child devises abate ratably (§ 853.25(4), (1)(c)4.). |
| Trust and nonprobate reach | Outside-will transfer may defeat coverage; court's share is assigned out of estate, with matching equitable/legal character where feasible (§ 853.25(1)(a)2., (1)(c)3., (5)). |
Requirements one by one
Who qualifies and what counts as an omission
Under § 853.25(1)(a), the later child must have been born or adopted after execution, and the will must fail to provide for that child. The statute also gives the deceased qualifying child's surviving issue the child's share under § 853.25(1)(d). For a child already living when the will was made, or issue of a child then deceased, § 853.25(2)(a) requires clear and convincing evidence of mistake or accident. Silence alone is insufficient under subsection (2)(b).
How the share is measured
If the testator had no living child when the will was executed, § 853.25(1)(b) uses the value of the share the omitted child would receive under intestacy law. If the will devised property to children then living, subsection (1)(c) limits the omitted child's share to those devises and computes an equal share with all omitted later-born or later-adopted children counted. The court can change the amount or form when the statutory amount would depart from the testator's intent under subsection (5).
Where the share comes from
For the intestate-value share, § 853.25(4) directs the court to use intestate property first, then proportional reductions of will devises. It can protect a specific gift on clear and convincing evidence that ordinary apportionment would defeat the testator's intention. In the existing-child route, subsection (1)(c)4. instead makes devises to the then-living children abate ratably while preserving the testamentary plan as far as possible.
What trips people up
The other-parent exception in § 853.25(1)(b) requires all or substantially all of the estate to go to or benefit that parent, and the parent must survive and be entitled to take. The exception is part of the no-living-child-at-execution route.
Section 853.25(3) requires a written demand to the court before the earlier of final judgment or six months after the will is allowed. A qualifying outside-will transfer can also defeat a later child's claim when the testator meant it to replace a will provision, as § 853.25(1)(a)2. specifies.
Common questions
Can evidence outside the will show that an omission was deliberate? Yes. Section 853.25(1)(a)1. allows the will or other evidence to show intentional omission.
Does the statute reach a gift through a testamentary trust? For the existing-child route, § 853.25(1)(c)3. directs that the omitted child's interest match the equitable or legal, present or future character of the existing children's devises as far as feasible.
Statutes and sources
- Wis. Stat. § 853.25. Verbatim current text, the official section URL, 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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