Do you have a child that doesn’t speak to you much anymore? Is your child currently a part of your will but, you don’t think they deserve to get any of your money, property, or household belongings? Is there a child that you have not even seen or heard from for many years? Is there a child from a previous marriage that you do not have a relationship with? Is there a child who was adopted by someone else? There is a statute in the State of Oklahoma that allows you to leave out of your will any provision for a child (or a grandchild). You can omit the child and their children, issue and descendants from your will if you do it properly.
The statute is cited below:
84 OS §132 OMITTED CHILD STATUTE OR PRETERMITTED HEIR INHERIT UNDER INTESTATE STATUTE
Section 132 – Determining Share for Child Unintentionally Omitted from Will
When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section. (Emphasis added.)
This statute is simply saying that you must make it obvious to anyone reading your will that you are intentionally not leaving them any inheritance. In other words that person is intentionally omitted from your will. As simple as this sounds, it is not so easy to apply in practice. I see wills each year in my practice where children are not correctly disinherited.
If you do not make it obvious that the child or grandchild is intentionally omitted from your will and you were to pass away, then your child or grandchild can contest your will and assert that they are an overlooked child or grandchild, or as it called in court, a pretermitted heir. If that is the case, then they can break your will and will inherit an equal share with the other children. Grandchildren are only pretermitted if their parent (your child) is deceased. A grandchild steps into the parents shoes as an heir. Grandchild having a living parent who is your child do not have a right to inherit.
Many people stumble over this statute when they fail to address a biological child that was adopted by someone else. It is necessary to specifically address that child and to disinherit and make it obvious that you have intentionally failed to provide for them. While an adoption cuts off the biological parental rights, it does not cut off the adopted child’s right to inherit from the biological parent. However an adopted child can be disinherited, the same as any child.
Of course using an experienced probate, will, trust and estate attorney for your will, trust or other planning pays off. The experienced attorney will know what questions to ask in order to protect your wishes. You want your wishes carried out and honored by the court system. Use an experienced attorney for legal advice on whether or not or how to omit a child or grandchild from you will or trust, or both, then you need to contact attorney Brent D. Coldiron. Brent is located at 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 42 years experience handling a variety of legal matters, including probates, wills, trusts, business formation, elder law, Medicaid qualification for nursing home care, protection from nursing home spend down, limited liability company and corporation formation, and guardianships. Give Brent a call, he knows what to do!