Children Born after the Will is Executed

A good Last Will and Testament will address the issue of children born after the document is executed. Nonetheless, the Tennessee Code has the situation covered:

A child born after the making of a will, either before or after the death of the testator, inclusive of a mother-testator, not provided for nor disinherited, but only pretermitted, in the will, and not provided for by settlement made by the testator in the testator’s lifetime, shall succeed to the same portion of the testator’s estate as if the testator had died intestate.

The statute goes on to say that a pretermitted child’s share is to be funded pro rata out of the shares of the other beneficiaries. 

Note that the quoted statute only mentions wills. What about revocable trusts (or irrevocable trusts, for that matter)? Does a child born after execution have any rights as a trust beneficiary? The Tennessee Trust Code does not contain a comparable statute. However, the above statute is presumably imported into the Tennessee Trust Code by virtue of the following:

The rules of construction that apply in this state to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.

Effective estate planning means updating the plan whenever family circumstance or financial circumstances change significantly. Thus, neither estate planners nor their clients should rely on the afterborn children statute. However, it is good to know about for those cases in which clients die before they have a chance to update their wills and trusts.

Source: T.C.A. §§ 32-3-103, 35-15-112

Posted by Joel D. Roettger, JD, LLM, EPLS

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