What if a child is born after their parent executes their will? Matter of Gillmore

Can a child born after their parent drafted a will inherit a NY estate? Matter of Gillmore

As a NY estate lawyer practicing in Forest Hills, New York with extensive experience in the NY probate law I have always found this area of practice fascinating. For example, under the NY estate law a parent is under no obligation to leave a child any portion of their estate. While a parent may completely disinherit their children within the NY probate law, you cannot disinherit a spouse. In other words if you write a will leaving your children nothing, your NY will can be probated as written. However if your NY will disinherits your husband or wife, your disinherited spouse may exercise their right of election entitling them to one-third (1/3) of your NY estate regardless of your will’s contents.

Considering a substantial portion of our NY probate practice consists of challenging NY attorney drafted wills disinheriting children, I see first hand how often this occurs. In my experience as a NY probate lawyer I have seen parents completely disinherit their children for a variety of reasons both good and bad. For instance, I have successfully challenged NY attorney drafted wills disinheriting children for reasons as varied as leaving home to go to college in another state against their parent’s wishes to becoming a drug addict.

While children may not automatically be entitled to inherit a portion of their parents NY estate they are most certainly able to contest the NY estate as distributees.

What happens if a child is accidently excluded from a NY estate?

For example as a NY estate lawyer drafting hundreds of NY wills a year I often ask my clients if they intend to have more children. It sounds like a straightforward question but can really cause incredible complications for your NY probate lawyer. For a couple not contemplating conceiving at the time of their wills’ execution, how would any child born after the will’s execution find their way into their parents NY estate plan? The answer is absent a new will, they wouldn’t. However, the NY estate law has a provision dedicated to protecting just those rights of afterborn children in such instances.

In NY probates where a child is born after their parent drafts a will, “afterborn children”, are entitled to inherit their intestate share of the NY probate. The NY estate law’s presumption is that the will was not drafted in contemplation of the afterborn child’s birth thus inadvertently excluded that afterborn child from their parents’ NY estate. By the NY estate law’s reasoning, had the parent had the additional child at the time their NY will was drafted, they would have created a provision for them. As such the afterborn child should not be disinherited from the NY estate and inherits.

Like many other areas of the NY estate law there are some interesting quirks to the provisions affording rights to afterborn children. For instance while afterborn children are afforded such protections under the NY estate law this protection is not without pitfalls. For an afterborn child to inherit, there must be provisions in their parent’s NY will for any other children born prior to the NY will’s execution.   Otherwise, the afterborn child is precluded from inheriting their parent’s estate. For example, if A has two children, B and C at the time he drafts a will and does not provide for either of them, any child born after the will’s execution will be disinherited as well regardless of the afterborn child protections within the NY estate law.  Therefore if D is born after the execution of A’s will, D would not be entitled to any portion of A’s NY probatable estate.

Are there exceptions to the afterborn child rule under the NY estate law?

Under Matter of Gillmore, only one exception to this rule was outlined by the NY Surrogate’s court. Under the NY estate law if a child born prior to the execution of a will is excluded from the will but later adopted into the family, that child may step up to inherit as an afterborn child. The rationale for this sole exception being that while the child was born prior to the will’s execution, therefore not an afterborn child, the child was later adopted. Therefore the adoption substitutes as the date from which the child was conceived.

Interestingly enough the Court’s ruling in Matter of Gillmore excluded what the Surrogate’s Court called “after known” children. These are children born prior to the execution of a will, presumably out of wedlock, and unknown to the parent. The parent eventually does a will excluding the unknown children. After all how would the parent know about an unknown child at the time of their will’s execution because they are unknown.   Eventually the parent dies and the NY estate learns of the existence of these unknown children.   Under the NY estate law, these “after known” children are not afforded the protections of afterborn children and cannot inherit under the NY probate law if there is a will. Nobody is certain about the Surrogate’s Court’s reasoning in this area of NY probate law. If the decedent was not aware of the existence of his children during his lifetime, the mere fact these children were born prior to the will’s execution excludes them from the protections of afterborn children. It seems wrong that “after known” children should be treated differently than afterborn children in the eyes of the NY probate law.

Perhaps the Surrogate’s Court reasoned that an afterborn child was unquestionably accepted to be the decedent’s child and should have been included in their NY estate. Whereas there is always the possibility the decedent may have quietly known about their “after known” child and intentionally failed to provide for them in their NY estate.

As a NY probate lawyer I can attest to the fact that Surrogate’s Courts are reluctant to interfere with someone’s wishes as stated in their will. Unless there is an important public interest Surrogate’s Courts will usually attempt to uphold NY attorney drafted wills as written. For this reason, having a properly executed NY attorney drafted will is always the best way to protect your legacy for future generations.

If you think you may have been wrongly excluded from a loved one’s will it never hurts to ask the opinion of an experienced NY will contest lawyer to see what rights you may have under the NY estate laws. Feel free to call the knowledgeable NY estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our Queens estate lawyers have 50 years of combined NY estate law experience drafting, probating and challenging wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Richmond, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.





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