Life can change quickly. Changes such as marriages and births can result in estate plans becoming outdated and failing to take into account the presence (or absence) of certain heirs, including spouses and children. So what happens if you accidentally omit a spouse or child from your will? Fortunately, the law recognizes that accidents happen and makes provisions for these kinds of situations. If you need to amend your will due to a life event such as a marriage or the birth of a child, the Springfield probate lawyers at Parks & Jones can assist you.
Accidentally Omitted Spouses
While it may be difficult to imagine omitting a spouse from a will, it can happen for a variety of reasons. One of the most common reasons spouses are omitted from wills is because the testator makes his or her will before getting married and forgets to add his or her spouse to the existing will. It can also occur when a testator gets divorced and forgets to swap out the names of the former and current spouses in his or her will. If a testator fails to provide for a surviving spouse who married the testator after the execution of the will, the spouse is entitled to receive the same share of the estate he or she would have received if the decedent left no will (i.e., died intestate). There is an exception to this rule in cases where the testator provided for the spouse by a transfer outside of the will and the transfer was intended to be in lieu of the will.
Accidentally Omitted Children
Another common class of omitted heirs is omitted children. Like omitted spouses, children are commonly omitted from wills when the testator fails to update his or her will after the birth of a child. If a testator fails to provide for any children born or adopted after the will was executed, the omitted child may receive the same share of the estate he or she would have received if the testator died intestate. However, this rule does not apply where:
- The testator had one or more children at the time the will was executed and devised substantially his or her estate to the parent of the omitted child; or
- The testator provided for the child by a transfer outside of the will and the transfer was intended to be in lieu of the will.
What If the Omission Appears To Be Intentional?
These statutory provisions apply only in cases where the omission appears to have been accidental. Children omitted from a parent’s will are not entitled to inherit if the omission appears to have been intentional, such as by omitting the child from a will executed after the child was born. Intentionally omitted spouses have a few more protections in the probate process than intentionally omitted children, primarily through a combination of the one-year support allowance, the homestead allowance, and the spouse’s right to take an “elective share” against the decedent’s will.
Avoid Accidentally Omitting an Heir by Updating Your Will With the Help of Our Springfield Probate Lawyers
The best way to avoid accidentally omitting a spouse or a child is to update your will after every major life event, including marriages, births, and deaths. To get started, please contact the Springfield probate lawyers at Parks & Jones by calling 877-376-5291 or using our online contact form.
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