When a Child Joins a Family After a Will was Made

Clients will frequently inquire as to the status of children born or adopted after the clients sign their wills. Children who are left out of wills are called “omitted children.” Please note that while this article refers to children being “born,” these rules also apply to children who join a family via adoption.

Virginia provides three default rules, each applicable to a different situation.

First, if the deceased parent made a will prior to having any children, then a child born afterward is entitled to the same share he/she would receive according to Virginia intestacy law. Intestacy law provides that when one spouse passes away, his/her property passes to the surviving spouse, which would prevent an omitted child from receiving anything in that situation. The omitted child may, however, receive a share if the deceased parent left children who are not also the children of the surviving spouse. Virginia Code Section 64.2-419. Clear as mud.

Second, if the deceased parent made a will after one or more children was born, then a child born afterward is entitled to the smaller of (1) the same share as the other child(ren) named in the will or (2) the same share he/she would receive according to Virginia intestacy law. Virginia Code Section 64.2-420.

Third, if the deceased parent made a will after all of parent’s children were born, the omitted child has no claim against the estate and gets nothing. (This is not taking into consideration the applicability of the Family, Exempt Property, and Homestead Allowance discussed last month.)

In the event a child passes away before a parent, the parent may not inherit from his/her minor child if the parent has deserted or abandoned the minor child and such desertion/abandonment continues through the minor child’s date of death. <https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-308.17/>