What happens if a parent dies without updating his will or trust to reflect the arrival of a new child?

The only correct short answer is, “It depends.”

First, it depends on the wording of the deceased parent’s will or trust.  Many such documents specifically provide for after-born children, but many others do not.

Second, it depends on applicable law.  Every state has a statute that is intended to protect the interests of children who might have been inadvertently left out of a parent’s estate plan.  These one-size-fits-all statutes are all well-intentioned, but they vary dramatically from state to state and sometimes produce results that differ from what the deceased parent probably would have wanted. 

Third, it depends on who is considered a child of the deceased person.  This can be more complicated than it might initially appear.

A person who had been formally adopted by the decedent will always be treated as the decedent’s child, even if that person was an adult at the time of the adoption … and even if the adopting parent later regretted the decision to adopt.  Kamaaina readers may recall that the billionaire heiress Doris Duke adopted a 35 year old Hare Krishna devotee when Duke was 75.  Duke later tried unsuccessfully to “divorce” her adoptive daughter when their friendship soured.

Many states also recognize the possibility of an informal adoption under the doctrine of equitable adoption.  Hawaii has specifically rejected this doctrine, saying that it would “import mischief and uncertainty into the law.”  As a result, hanai children have no rights with respect to the estate of the hanai parent, even when it can be proven beyond a reasonable doubt that the decedent intended a parent-child relationship.

Identifying a parent-child relationship is sometimes further complicated by the growing use of in vitro fertilization, sperm banks, and surrogacy contracts.  Because of modern science, the essential ingredients for making a baby—that is, an egg, sperm, and womb—can potentially be provided by three different people, each of whom could either be acting on his or her own behalf or as a donor or surrogate for an intended parent.  There have also been high-profile cases involving the legal status of children who are conceived after the father’s death.     

By the way, the answer to this week’s question can be even more complicated if we assume that the decedent is the grandparent of the child in question, rather than the parent. 

One takeaway message from all this is that a will or trust can be drafted in such a way as to adjust automatically to changed circumstances, such as the birth of a child or grandchild.  Another is that periodic reviews of your will or trust can give you additional peace of mind, which is a major goal of estate planning.

As always, I must add that this blog does not contain legal advice, and that you should not rely on any of the above information to determine what is in your own best interest. 


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