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Probate and Estate Litigation Blog

What are omitted children in Minnesota wills?

Most Minnesota residents understand that when they die, their property is passed to individuals related to them who are called heirs. These individuals can take the property of the deceased individual either based on a statute the state has set up to govern such cases, a process called intestacy, or based upon a last will and testament that has been written by the deceased according to some formal procedures.

While in many cases, this will is submitted to probate, and the personal representative makes the distributions as described in the document, there are times when people can challenge a will or enter the probate process through litigation. One of the instances which can cause this kind of intervention is in cases of omitted, after-born children.People who are alive at the time the will is executed are assumed to have been considered by the testator when creating the devises therein. This means that is the will creator leaves out a person who is alive at the time, it is presumed to be intentional and the probate court will give effect to that intent. However, when a person who would naturally be considered an heir, such as a child of the testator, is not alive when the will is executed, the law may allow that individual to get a share of the estate even if not mentioned in the document.

Minnesota statute 524.2-302 covers these so-called omitted children. Basically, this law says that a child who is born after the execution of a will and thus not included in it, is entitled to a share of the estate similar to what he or she would have gotten if the testator had died intestate, as long as the testator did not make arrangements to give assets to the omitted child outside of probate (such as through a trust, for example.) However, if the decedent had other children who were provided for in the will, the omitted after-born child's share will be limited to the amounts bequeathed to the existing children, as well as being, as much as possible, of the same kind. This means if the other children were given real property, then the omitted child should also be given a share of that type of property, if feasible.

The intent behind this law is that people generally don't want to disinherit their children, but generally can't consider a person in a will if they don't yet know that person will exist. While the best course of action is usually to go back and revise a will when children are born, not everyone has a chance to do so.

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