Airbrushed Heirs: The Problem of Children Omitted from Wills

Abstract

This Article addresses rules designed to protect children from unintentional disinheritance. The Article examines the problem in the abstract and in the concrete, assessing the merits of the twin theories — mistaken omission and failure to account for changed circumstances — on which lawmakers predicate rules to protect omitted children, as well as exploring the extant legislative variants of those rules. The Article concludes that current legislation (including the Uniform Probate Code) is insensitive to the problemʼs complexities and proposes legislative revisions — among them, the substitution of transient for permanent presumptions in some cases — or, in the alternative, a switch to discretionary rules. In the course of addressing the problemʼs ramifications, the Article also undertakes the first-ever empirical study of individual attitudes toward inheritance by children whom fathers are unaware they have.

Keywords: pretermitted child, omitted child, unknown child, uniform probate code, inheritance, wills, estates

JEL Classification: K11, K19, K39