What If a Child Is Left Out of a Will?

Alabama’s Pretermitted Child Statute.

You and your wife signed wills right after you got married, but that was years ago. In the meantime, you’ve had children together, your wife has died, and now you’re a single dad.

You never updated your previous will, and the will you signed back when you were childless leaves everything to your now-deceased wife and  your contingent beneficiary is your brother. So, according to your will, when you die your brother gets everything and  your children get nothing, right?

WRONG.

If you fail to provide for your child in your will Alabama has a safeguard:  the “pretermitted child” statute, or “omitted child” law.

Alabama’s pretermitted child law says that if your will fails to provide for any children born to or adopted by you after you sign your will, then the “omitted child” gets the same share of your estate he would have gotten if you had died without a will.

There are exceptions, however. If your will leaves everything to the other parent of the omitted child then your child cannot claim his omitted child share.  Or, if proof is presented that you made transfers “outside the will” during your lifetime with the intention that those transfers would replace any inheritance.

What If I Meant to Disinherit My Child(ren)?

Basically, Alabama law assumes that your failure to include your children in your will was a mistake on your part and that your real preference is for your children to inherit from you. If that’s the case then the omitted child statute works in your favor.  But what if you don’t want the omitted child law to apply to your estate?

If your will makes it clear that you intentionally left your children out then the statute will not apply.  For example, your will might state that you have provided for your children adequately outside of the will, maybe with insurance proceeds or gifts during your lifetime. If you want to disinherit your children then you should work with an estate planning attorney to be sure that your will clearly states your intentions.

An Estate Planning Attorney Can Help.

Alabama’s omitted child is a good safety net, but it’s best to make sure your estate plan says exactly what you want by regularly updating your will.  An estate planning attorney can help you update your will to adequately provide for your children, or can help you craft a will that disinherits your children if that’s your desire.  Call the attorneys of Lewis, Lewis & Falkner today at 205-553-5353 or stop by our Tuscaloosa office to discuss your estate planning options.