Tennessee’s Treatment of Pretermitted Children

The structure of a family tree can change quickly, especially for parents planning to have additional children.  Can children born into the family after the execution of a Will still inherit from their parents?  If a testator doesn’t provide for one of his or her children in the Will, is that child considered to be disinherited? 

Tennessee law answers these questions in a statute addressing the concept of an afterborn or “pretermitted child.”  A pretermitted child is one that is born or adopted by the parent after a Will is executed by the parent and is not otherwise provided for by the parent.  Tennessee Code Annotated § 32-3-103 makes it clear that a child left out of a parent’s will can still inherit from their parent’s estate.  However, in this situation the child’s share of parent’s estate will only be an intestate share, or the share the child would have received if the parent never made a will at all.  The pretermitted child’s share will be drawn from the other heirs’ shares in accordance with how much the other heirs received from the testator’s estate. 

            Tennessee does allow parents to intentionally exclude, or disinherit their children or any heirs of their estate, but such a decision must be specifically documented in a Will.  Specific language to evidence disinheritance is required, as Tennessee follows a presumption against inadvertent or unintentional disinheritance of an heir.  By way of example, if a testator provides for one child in his or her will but does not mention another, Tennessee presumes that the omission of the second child was unintentional absent specific disinheritance language in the Will, and will allow the child to inherit an intestate share from the parent’s estate.

Although Tennessee law contains a presumption against disinheritance (Lanier v. Rains, 229 S.W.3d 656 (Tenn. 2007)), every estate planning situation is unique.  It’s important for parents to address their specific estate planning needs with their attorney to ensure their wishes are complied with as their family expands.