New York Estates, Powers & Trusts 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 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 term "after-born child" shall mean a child of the testator born during the testator's lifetime or in gestation at the time of the testator's death and born thereafter. For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.

(c) The after-born child may recover the share of the testator's estate to which such child 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.


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Last modified: September 11, 2016