Intestate Succession and Wills

ORS 112.405
Children born, adopted or conceived after execution of will

  • pretermitted children


(1)

As used in this section, “pretermitted child” means a child of a testator who is born, adopted, or conceived as described in ORS 112.077 (Time of determining relationships) (3) or (4), after the execution of the will of the testator, who is neither provided for in the will nor in any way mentioned in the will and who survives the testator.

(2)

If a testator has one or more children living when the testator executes a will and no provision is made in the will for one or more of the living children, a pretermitted child shall not take a share of the estate of the testator disposed of by the will.

(3)

If a testator has one or more children living when the testator executes a will and provision is made in the will for one or more of the living children, a pretermitted child is entitled to share in the estate of the testator disposed of by the will as follows:

(a)

The pretermitted child may share only in the portion of the estate devised to the living children by the will.

(b)

The share of each pretermitted child shall be the total value of the portion of the estate devised to the living children by the will divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the will.

(c)

To the extent feasible, the interest of a pretermitted child in the estate is of the same character, whether equitable or legal, as the interest the testator gave to the living children by the will.

(4)

If a testator has no child living when the testator executes a will, a pretermitted child shall take a share of the estate as though the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the pretermitted child and that other parent survives the testator and is entitled to take under the will.

(5)

A pretermitted child may recover the share of the estate to which the child is entitled, as provided in this section, either from the other children under subsection (3) of this section or from the testamentary beneficiaries under subsection (4) of this section, ratably, out of the portions of the estate passing to those persons under the will. In abating the interests of those beneficiaries, the character of the testamentary plan adopted by the testator must be preserved so far as possible. [1969 c.591 §54; 2015 c.387 §21]

Source

Last accessed
Jun. 26, 2021