Case Law Update: Pretermitted Children

The pretermitted child statute does not apply to non-marital children acknowledged after execution of will.  

The testator acknowledged his nonmarital children a year before his death which was ten years after the execution of his last will.  After his death, these nonmarital children intervened in the probate proceeding claiming that they should be treated as children born after execution of the will for purposes of New York’s pretermitted child statute. 

In  In re Gilmore, 925 N.Y.S.2d 567 (App. Div. 2011), the Surrogate issued an order finding that the nonmarital children were not entitled to the benefit of the statute and the intermediate appellate court agreed, holding that the legislative history of the statute indicates that the Legislature did not intend it to apply to nonmarital children born after execution of their parent’s last will and that to hold otherwise would unduly complicate estate administration.

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for sending me this case law update.