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Easton MA Estate Planning Atty. B. von Weiss: When Will Omits A Child

By Brigitte von Weiss

Real Estate Attorney with an Expertise in Estate Planning and Elder Law

January 29, 2014 09:13 AM

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, Massachusetts law provided that a child not included in the will (“omitted child”), or their descendant(s) in certain circumstances, may elect (by filing a timely claim) to take an intestate share (what he or she would have gotten if no will), regardless of whether the child was born before or after the execution of the will, unless (1) the omitted child (or their descendant(s) in certain circumstances) was "provided for by the testator during his life time" or (2) "it appears that the omission was intentional and not occasioned by accident or mistake[.]" M.G.L. c. 191, § 20.

The new law pertaining to an omitted child, §2-302 of the MUPC, applies only to a child born or adopted after execution of the testator’s will (a so-called “after-born” or “after-adopted” child). The omitted “after-born” or “after-adopted” child, in certain circumstances, will receive a portion of the probate estate unless "[i]t appears from the will that the omission was intentional" or "[t]he testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence." M.G.L. c. 190B, § 2-302(a) & (b).

If a child is omitted solely because the parent believes that he or she is deceased when in fact he or she is still living, the child will be entitled to a share of the probate estate. M.G.L. c. 190B, § 2-302(c).

When intentionally disinheriting a child, one may consider having the will clearly state that the omission is intentional and that the parent believes the child is living at the time of the signing of the will.

The Comment to § 2-302 of the MUPC, states, in part, as follows:

No Child Living When Will Executed. If the testator had no child living when he or she executed the will.... an omitted after-born or after-adopted child receives the share he or she would have received had the testator died intestate, unless the will devised, under trust or not, all or substantially all of the estate to the other parent of the omitted child. If the will did devise, under trust or not, all or substantially all of the estate to the other parent of the omitted child, and if that other parent survives the testator and is entitled to take under the will, the omitted after-born or after-adopted child receives no share of the estate. In the case of an after-adopted child, the term "other parent" refers to the other adopting parent....

One or More Children Living When Will Executed. If the testator had one or more children living when the will was executed ... an omitted after-born or after-adopted child only receives a share of the testator's estate if the testator's will devised property or an equitable or legal interest in property to one or more of the children living at the time the will was executed; if not, the omitted after-born or after-adopted child receives nothing.

Nothing in this blog should be considered legal advice as this is a complicated area of the law.

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norwood, MA, Norton, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.

Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College. This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need. Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help. You also may reach her through her website at www.vonweisslaw.com.

ADDITIONAL RESOURCES:

The Massachusetts Uniform Probate Code (MUPC)

Bristol County Family and Probate Court

Plymouth County Family and Probate Court

Norfolk County Family and Probate Court

ESTATE PLANNING

AARP estate planning article

Forbes magazine estate planning article

Kiplinger magazine estate planning article

USA newspaper estate planning article

American Bar Association's Estate Planning FAQ's

New York Times article on estate planning