A pretermitted heir is a child who was omitted from the will of a testator. Under common law, the omission of a child from a will was assumed to be deliberate; however, states have enacted pretermitted heir statutes to protect heirs who have been unintentionally omitted from a will. Under pretermitted heir statutes the heir receives the same portion of the testator’s estate that would have been received if the testator had died intestate. In some states, only those children who were born after the creation of the will are protected by pretermitted heir statutes. The presumption is that had the child been alive at the time the will was created, they would have been included. Other states extend protections to all children, included those who were in existence at the time the will was created.
However, where intention to disinherit a child is properly shown, pretermitted heir statutes do not apply. Some jurisdictions require intent to disinherit to be clearly shown on the face of the will, while others only require intent to disinherit be implied from the language of the will. For example, where a child was left nothing under the will, but was named executor.
[Last updated in August of 2020 by the Wex Definitions Team]