San Antonio Express-News
March 11, 2003

Pretermitted Child or Grandchild

copyright 2003, Paul Premack

"Pretermission" is a legal term that, in Texas, means being an child who is born after the date the Will was written. Here's an example: Betty has two children. Bob was born in 1975 and Sylvia was born in 1977. Betty wrote a Will in 1976 that left her estate to her husband, and if he wasn't alive then to Bob. In 1999 Betty's husband died, leaving everything to Betty. Then in 2002 Betty died.

She never did update her 1976 Will, so there is no mention of Sylvia in it. According to Texas law, Sylvia is a "pretermitted child" who may be able to inherit along with Bob anyway.

In the case of Gorski v Welch (decided in 1999 by the Texas Court of Appeals), the court applied the Texas statute to allow a pretermitted child to receive a portion of the estate when not mentioned in the Will, or not provided for in the Will, or not otherwise provided for outside the Will in a manner intended to replace a Will-based inheritance.

The purpose of the pretermission law is to save families from thoughtlessness. The court said that for a pretermitted child to receive part of the estate, "it must appear from the Will, interpreted in light of all the circumstances, that the failure to provide for the child… was accidental, or due to inadvertence or oversight."

Most of the appellate court cases on pretermitted children take a very conservative approach to recognizing inheritance rights. The statute requires a variety of factors to be proven before a pretermitted child will inherit. But if all those factors are proven and the child's right to inherit is legally established, then those inheritance rights should extend to the next generation as well.

For example, if daughter Sylvia was clearly established as a pretermitted child - but Sylvia died in 2001 (the year before mother Betty died), then Sylvia's children should be entitled to the same inheritance Sylvia would have gotten if she had outlived her mother Betty. Although the definition of pretermission is clear, the issue of whether those rights extend to the grandchildren through the children has not been ruled upon by a Texas appeals court.

It is, on the other hand, very clear that the concept of pretermission does not apply directly to grandchildren. For instance, if Betty's Will said "I leave everything to my two grandchildren Jim and Joe," and a year later a third grandchild named Julie is born, Julie is not automatically included as Betty's heir (even though Julie was born after the Will was made). The pretermission statute includes only Betty's the natural born or adopted children when granting inheritance rights, not her grandchildren. The grandchild's only hope is to receive by virtue of their parent's right to receive, so granddaughter Julie would be left out.