Categories: Court Info

Understanding Your Child’s Inheritance Rights

Q: What is a 'pretermitted child'?

A 'pretermitted child' is a child who was unintentionally left out of a parent's will, often because they were born after the will was drafted. Many states have laws that grant these children a share of the estate.

Exploring the legal framework for a child’s right to inheritance, from intestacy laws to the role of a will, and understanding the protections in place for minors and adopted children.

When a parent passes away, the legal process of distributing their assets can be complex, especially when considering the inheritance rights of their children. The specifics of what a child is entitled to largely depend on whether the parent had a valid will or not. This post will demystify the key legal principles governing a child’s inheritance in the United States, providing a clear overview of the process and a child’s rights under the law.

The Role of Intestacy Laws

In the absence of a will, a person is said to have died “intestate”. In such cases, state law dictates how the deceased person’s estate is distributed. These state laws, known as intestacy succession laws, prioritize a person’s closest living relatives.

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In a typical intestate scenario, a surviving spouse generally has the first claim to the estate, often receiving a preferential share. Any remaining assets are then divided among the children. However, if there is no surviving spouse, the children of the deceased person will typically inherit the entire estate. These specifics can vary significantly depending on the state and the nature of the property (community vs. separate property).

Inheritance When There is a Will

A parent can generally use a will or trust to determine who inherits their assets. While many parents create estate plans to provide for their children, they are not legally obligated to leave them anything in a will, except in specific circumstances. If a will exists but does not provide for a child, it may be possible to contest the will if certain legal grounds, such as undue influence or fraud, can be proven.

Tip: Pretermitted Children

Most states have laws to protect children who were unintentionally omitted from a will. These “pretermitted children” laws often apply if a child is born after the will was created. In such cases, the omitted child may be eligible to inherit a portion of the estate comparable to what their siblings received under the will. This legal provision presumes the omission was an accident.

Special Considerations for Children

The term “child” in inheritance law includes a variety of relationships. It is important to know how different family dynamics can affect inheritance rights.

Adopted Children: In most states, legally adopted children have the same inheritance rights as biological children.
Stepchildren and Foster Children: These children do not typically have a legal right to inherit unless they were legally adopted by the deceased parent.
Grandchildren: Generally, grandchildren do not have a legal right to inherit from a grandparent unless their parent (the deceased’s child) has already passed away. In this case, the grandchildren would typically inherit the share that their parent would have received.

For minor children (under 18), special rules apply. They cannot directly claim inherited assets. Instead, a probate court may appoint a guardian to manage the inheritance until the child reaches adulthood. This guardianship ensures the assets are used for the minor’s benefit, such as for education and living expenses.

Summary of Key Points

Inheritance rights for children are determined by state laws, which vary significantly.
If there is no will, state intestacy laws govern the distribution of assets, with a hierarchy that typically prioritizes a surviving spouse and then children.
A parent can generally disinherit a child in a will, but laws exist to protect children who are unintentionally left out.
Assets with designated beneficiaries, like life insurance or retirement accounts, bypass the will and are not subject to intestacy laws.
Minors cannot directly inherit, and a guardian or trust is often established to manage their inheritance until they become adults.

At a Glance: Protecting Your Child’s Legacy

To ensure your child’s inheritance is protected, it is essential to have a comprehensive estate plan. This can include a will, trusts, or designated beneficiaries on financial accounts. Consulting with a professional can help you navigate the complexities of state laws and ensure your wishes are carried out, securing your legacy for your loved ones.

Recommended: Securing Your Legacy

Frequently Asked Questions

Can a parent completely disinherit a child?

Yes, in most states, a parent can intentionally disinherit a child through a will. However, there are state laws that protect against unintentional omission, particularly for children born after the will’s creation.

Do adopted children have the same inheritance rights as biological children?

Yes, in most US states, a legally adopted child is treated the same as a biological child for the purposes of inheritance.

What is a “pretermitted child”?

A “pretermitted child” is a child who was unintentionally left out of a parent’s will, often because they were born after the will was drafted. Many states have laws that grant these children a share of the estate.

How is an inheritance handled for a minor child?

Since minors cannot directly own property, a probate court may appoint a guardian to manage the inheritance on their behalf. Alternatively, the assets may be held in a trust until the child reaches the age of majority, at which point the assets are transferred to them.

Disclaimer: The information in this blog post is for general educational purposes only and should not be considered legal advice. This content was generated with the assistance of an AI. Laws regarding inheritance are complex and vary by state. You should consult with a qualified legal expert for advice tailored to your specific situation.

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