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New York Estates, Powers and Trusts Law Section 5-3.2 - Revocatory Effect Of Birth Of Child After Execution Of Will

Legal Research Home > New York Lawyer > Estates, Powers and Trusts > New York Estates, Powers and Trusts Law Section 5-3.2 - Revocatory Effect Of Birth Of Child After Execution Of Will

  § 5-3.2. Revocatory effect of birth of child after execution of will
    (a) Whenever a testator, during his lifetime or after his death, has a
  child  born  after  the  execution  of a last will, and dies leaving the
  after-born child unprovided for by any settlement, and neither  provided
  for nor in any way mentioned in the will, every such child shall succeed
  to a portion of the testator's estate as herein provided:
    (1)  If  the testator has one or more children living when he executes
  his last will, and:
    (A) No provision is made therein for any  such  child,  an  after-born
  child is not entitled to share in the testator's estate.
    (B)  Provision  is  made  therein for one or more of such children, an
  after-born child is entitled to  share  in  the  testator's  estate,  as
  follows:
    (i) The portion of the testator's estate in which the after-born child
  may share is limited to the disposition made to children under the will.
    (ii)  The  after-born child shall receive such share of the testator's
  estate, as limited in subclause (i), as he would have received  had  the
  testator  included  all  after-born children with the children upon whom
  benefits were conferred under the will, and given an equal share of  the
  estate to each such child.
    (iii)  If  it appears from the will that the intention of the testator
  was to make a limited provision which specifically applied only  to  the
  testator's  children  living  at  the  time  the  will was executed, the
  after-born child succeeds to the portion of such  testator's  estate  as
  would have passed to such child had the testator died intestate.
    (iv) To the extent that it is feasible, the interest of the after-born
  child  in  the testator's estate shall be of the same character, whether
  an equitable or legal life estate or in fee, as the interest  which  the
  testator conferred upon his children under the will.
    (2)  If  the  testator  has  no child living when he executes his last
  will, the after-born child succeeds to the portion  of  such  testator's
  estate  as  would  have  passed  to  such  child  had  the testator died
  intestate.
    (b) The after-born child may  recover  the  share  of  the  testator's
  estate  to  which  he  is entitled, either from the other children under
  subparagraph  (a)  (1)  (B)  or  the  testamentary  beneficiaries  under
  subparagraph  (a)  (2),  ratably,  out  of  the  portions of such estate
  passing to such persons under the will. In abating the interests of such
  beneficiaries, the character of the testamentary  plan  adopted  by  the
  testator shall be preserved to the maximum extent possible.

Last modified: July 31, 2006