The Texas Probate Code has a particular provision to make sure that a person making a will – called a “testator” – does not unintentionally leave his or her child out of the will. When a child is born after a will is made but is left out of the parent’s will, that child is called a “pretermitted child,” and has special rights under Texas law.
A pretermitted child includes a child who is not born during the parents’ marriage but is born after the testator parent executed the will. To take advantage of the rights afforded under Texas law, a pretermitted child must not be mentioned in the testator’s will, provided for in the testator’s will, or otherwise provided for by the testator.
For child to be considered “otherwise provided for,” a disposition of property outside the will must be relied upon as providing for the child and intended to take effect at the testator’s death. This “otherwise provided for” requirement includes social security benefits payable to the child and status as a contingent beneficiary of a life insurance policy. Further, at least one Texas court has held that a gift in a will to a class such as “heirs,” “heirs at law,” or “issue” constitutes a provision for those within the designated class, and such a provision prohibits an heir from claiming pretermitted child status.
In addition to the requirements listed above, for the pretermitted child statute to apply, it must “appear from the will, interpreted in the light of all the circumstances, that the failure to provide for the child…was accidental, due to inadvertence or oversight.” While Texas law does not aim to prevent a testator from distributing property as he or she wishes, public policy does favor the protection of children from mistakes made by testators.