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Understanding the omitted child statute

On Behalf of | Jan 27, 2023 | Estate Planning

For the most part, Kentucky law allows you to provide for anyone you want to in your estate plan. You can also omit almost anyone you want to. However, there are some limitations.

One such limitation comes in the form of the state’s so-called omitted child statute.

Also known as the pretermitted child statute, the law provides that a child who was unintentionally left out of a will to claim a share of their parent’s estate.

However, even this protection is limited. The law applies to children who were born or adopted after the execution of the will. Also, it does not apply in certain situations, including cases in which the will makes it clear that the parent intentionally left the child out of the will.

Intentionally omitted child not protected under state law

A recent court case from the Commonwealth of Kentucky Court of Appeals illustrates how the statute works.

The case involved a man who died in November 2017 with a will executed in 2015 providing a trust for his daughter. In 2016, the man amended the terms of the trust to unambiguously exclude two twins born in 2013. A paternity test in 2015 revealed the man as the twins’ father.

The twins’ grandparents appealed a lower court judgment arguing, among other things, that Kentucky’s omitted heir statute should apply, and that the twins should be provided for in the trust.

In affirming the lower court’s decision, the appeals court noted that the language of the omitted child statute protects children unintentionally omitted from a will. Furthermore, the provisions apply only to children born or adopted after execution of the will. Neither of those conditions existed in the case.

When family relationships are difficult, it’s especially important to have a well-drafted estate plan. Attorneys familiar with the estate planning process can offer guidance.