Rights of descendants
intentionally omitted from a will
 While spouses are protected when
intentionally omitted from a will through the
elective share, children are not (except in
Louisiana)
 That said, testators invite challenges to their
estate plan when they omit children (unless
the estate goes to the child’s surviving
parent), and juries and judges tend to be
sympathetic to the children (p. 520)
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Protection of descendants
inadvertently omitted from the will
 While testators are permitted to deny their
children a bequest, the law also protects
their children from being left out of the will
unintentionally
 Usually, the statutes apply to children born or
adopted after execution of the will
 Sometimes, though, they also apply to children
alive when the will is executed
 When is an omission considered intentional
and when is it considered unintentional?
2
Gray v. Gray
Gray v. Gray
947 So. 2d 1045 (Ala. 2006), p.528
Mary
Rose
John
Monica
Robert
Jack
1981
1984
1989
John executes a
will devising his
entire estate to
his wife Mary.
Jack is
born.
John and Mary divorce. As part
of settlement, John creates a
trust for Jack.
2004
John dies.
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What was the effect of John’s
will after he died?
 The divorce revoked the provision in the will in favor
of Mary, so John’s estate would either pass through
intestacy or go to a contingent beneficiary
 If it passed through intestacy, what would happen?

The three children would share

It was John’s brother (footnote 28)
 Since Jack would have no reason to sue if the estate
passed through intestacy, there must be a contingent
beneficiary
 Jack takes only if he was unintentionally omitted
from the will
4
Was the omission of Jack
unintentional under Alabama law?
 No. Under provision (a)(2), Jack’s omission is
considered intentional
 What’s wrong with viewing Jack’s situation as an (a)
(2) situation?


The provision contemplates a situation in which the other
parent of the omitted child will provide for the child with
the bequest from the decedent
In this case, the other parent will not receive a bequest
because of the divorce—the statutory provision assumes
that the other parent actually takes under the will
 This point is made explicitly in the 1990 UPC, page
5
531, under (a)(1)
Would Jack take under the 1990
UPC?
 No. Under provision (a)(2), Jack’s omission is
considered intentional because John had living
children when he wrote his will.
 What would have been a better way for the court
to reach the result it reached and which was
probably the correct result?

Use provision (a)(3) of the Alabama pretermitted child
statute (note 1, page 532). John did provide for Jack
with the trust. Why didn’t the court go this route?

Because it requires an assessment of intent and that becomes
more complicated. Was the trust actually intended as a
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“transfer in lieu of a testamentary provision?”
Note 3, p. 532
 Under the second example, C receives $5,000,
two-thirds from A and two-thirds from B—(2(ii)
and 2(iv), pages 531-532)
 C gets an intestate share under the 1969 UPC
unless the second or third provision is satisfied
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Pretermitted child
(1969 UPC)
a) If a testator fails to provide in his will for any of his children
born or adopted after the execution of his will, the omitted child
receives a share in the estate equal in value to that which he
would have received if the testator had died intestate unless:
1) It appears from the will that the omission was intentional;
2) When the will was executed the testator had one or more
children and devised substantially all his estate to the other
parent of the omitted child; or
3) The testator provided for the child by transfer outside the
will and the intent that the transfer be in lieu of a
testamentary provision be reasonably proven. . . .
Ala. Code in Gray (pages 528-529)
Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)
8
Pretermitted child
(1990 UPC, § 2-302(a)(1))
Except as provided in subsection (b), if a testator fails
to provide in his [or her] will for any of his [or her]
children born or adopted after the execution of the
will, the omitted after-born or after-adopted child
receives a share in the estate as follows:
1) If the testator had no child living when he [or she]
executed the will, an omitted after-born or afteradopted child receives a share in the estate equal in
value to that which the child would have received had
the testator died intestate, unless the will devised all or
substantially all of the estate to the other parent of the
omitted child and that other parent survives the
testator and is entitled to take under the will.
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Pretermitted child
(1990 UPC, § 2-302(a)(2))
Except as provided in subsection (b), if a testator fails
to provide in his [or her] will for any of his [or her]
children born or adopted after the execution of the
will, the omitted after-born or after-adopted child
receives a share in the estate as follows:
2) If the testator had one or more children living when he
[or she] executed the will, and the will [made a
bequest] to one or more of the then-living children, an
omitted after-born or after-adopted child is entitled to
share in the testator’s estate as follows:
10
Pretermitted child
(1969 UPC)
a) If a testator fails to provide in his will for any of his children
born or adopted after the execution of his will, the omitted child
receives a share in the estate equal in value to that which he
would have received if the testator had died intestate unless:
1) It appears from the will that the omission was intentional;
2) When the will was executed the testator had one or more
children and devised substantially all his estate to the other
parent of the omitted child; or
3) The testator provided for the child by transfer outside the
will and the intent that the transfer be in lieu of a
testamentary provision be reasonably proven. . . .
Ala. Code in Gray (pages 528-529)
Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)
11
Pretermitted child
(1969 UPC)
a) If a testator fails to provide in his will for any of his children
born or adopted after the execution of his will, the omitted child
receives a share in the estate equal in value to that which he
would have received if the testator had died intestate unless:
1) It appears from the will that the omission was intentional;
2) When the will was executed the testator had one or more
children and devised substantially all his estate to the other
parent of the omitted child; or
3) The testator provided for the child by transfer outside the
will and the intent that the transfer be in lieu of a
testamentary provision be reasonably proven. . . .
Ala. Code in Gray (pages 528-529)
Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)
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Will of Calvin Coolidge
“The White House”
Washington
Will of Calvin Coolidge of Northampton,
Hampshire County, Massachusetts
Not unmindful of my son John, I give all my estate both
real and personal to my wife Grace Coolidge, in fee simple
– Home at Washington, District of Columbia this twentieth
day December, A.D. nineteen hundred and twenty six.
/s/ Calvin Coolidge____
Signed by me on the date above in the presence of the
testator and of each other as witnesses to said will and the
signature thereof.
/s/ Everett Sanders___
/s/ Edward T. Clark___
/s/ Erwin C. Geiser___
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