Pretemittered child - Children born after the Will
Testator executed a will leaving his entire estate to Brother. Thereafter, Testator had two children. After Testator’s death, his two children claimed that they were pretermitted and thus each entitled to half of Testator’s estate under Probate Code . The trial court granted a summary judgment rejecting the children’s claim. The court found that even if the children were pretermitted, they were otherwise provided for and thus precluded from sharing in the estate. The children appealed.
The appellate court determined that the summary judgment holding was improper. The court then examined whether one or both of the children were “otherwise provide for” so they could not take even if they were determined to be pretermitted.
The court examined three possible ways in which Testator provided for his children.
Testator paid social security taxes which allowed his children to receiving death benefits. Rejecting the reasoning in Estate of Gorski v. Welch, 993 S.W.2d 298 (Tex. App.—San Antonio 1999, pet. denied), the court held that Testator did not voluntarily supply the social security death benefits because they are a product of federal law which mandates the payment of social security taxes.
Second, the court rejected the argument that Testator’s court-ordered child support obligations was sufficient to show that he had provided for his children. The support order was rendered by default and the obligation ended upon Testator’s death unlike the order in Gorski which was entered by consent and continued after the testator’s death.
Third, the court agreed that Son was indeed otherwise provided for because Testator named him as a contingent beneficiary on one of his life insurance policies. The court rejected Son’s argument that a contingent disposition is insufficient because Probate code states that the disposition may be “vested or contingent.”
Take away: A court will be unlikely to determine that a pretermitted child was "otherwise" provided for unless it is clear that the testator made provisions for the child after the testator’s death and that the omission from the will was not because of oversight or mistake.
What if the child was unknown to the testator? The answer on how the court will treat this is UNKNOWN!