Pretermitted Spouses and Children

Question 1

When is the child considered pretermitted? PER THE UPC

Answer 1

A CHILD IS PRETERMITTED PER THE UPC:

IF:
1. the child is born after the execution of the will; AND
2. the testator fails to provide in the will for the child.

THEN the child is pretermitted.

UNLESS:
1. It appears from the will that omission was intentional; OR
2. the testator provided for the child by transfer OUTSIDE of the will; OR
3. the will devised all or substantially ALL of the estate to another parent of the omitted child AND that parent survives the testator and is entitled to take under the will.

Question 2

When is the surviving spouse / child considered pretermitted? PER THE CPC

Answer 2

A CHILD IS PRETERMITTED PER THE CPC:

IF:
1. the child is born after the execution of the will; AND
2. the testator fails to provide in the will for the child.

THEN the child is pretermitted.

UNLESS:
1. It appears from the will that omission was intentional; OR
2. The testator provided for the child by transfer OUTSIDE of the will; OR
3. The decedent had one or more child and devised or gave substantially all or ALL of the estate to the other parent of the omitted child.

Question 3

How much should the PRETERMITTED child take?

Answer 3

Per the UPC:

1. if there is no child living when the testator executed the will, the omitted child receives an intestate share; OR
2. if there is 1 or more children living when the testator executed the will, and the will devised property to one or more of the then-living children, the omitted child is only allowed to take as follows:

    a. Only allowed to take from the devised portion of the estate (specifically, the amount is the amount that the child would have received if they were not omitted in that portion in equal share as the included children);

Per the CPC:

The child will receive an intestate share.

Question 4

When is the surviving spouse considered pretermitted? PER THE UPC / CPC .

Answer 4

A SS IS PRETERMITTED PER THE UPC:

IF:
1. the SS is married after the execution of the will;

UNLESS:
1. the will said that it intends not to provide for the spouse; OR
2. the testator provided for the spouse by transfer outside of the will and that the transfer is made in lieu of the testamentary provision is reasonably inferred from the transfer.

A SS IS PRETERMITTED PER THE CPC:

IF:
1. the decedent fails to provide in a will for the SS who was married to the decedent AFTER the execution of the will.

UNLESS:
1. the will said that it intends not to provide for the spouse; OR
2. the testator provided for the spouse by transfer outside of the will and that the transfer is made in lieu of the testamentary provision is reasonably inferred from the transfer.

Question 5

How much should the PRETERMITTED spouse take?

Answer 5

For UPC:

The SS takes anything they would have gotten if the testator died intestate except for the things the testator devised to his children (that are not biologically related to the SS.).

For CPC:

SS takes 1/2 of the CP PLUS an intestate share of the decedent's SP but not more than one-half of the SP.