(1) As used in this section, “pretermitted child” means a child of a settlor who is born or adopted after the execution of the trust instrument, who is not provided for in the trust or mentioned in the trust instrument and who survives the settlor.
(2) If a settlor has one or more children living when the settlor executes a trust instrument and no provision is made in the trust for any of those children, a pretermitted child is not entitled to any share of the trust estate.
(3) If a settlor has one or more children living when the settlor executes a trust instrument and provision is made in the trust for any of those children, a pretermitted child is entitled to share in the trust estate as follows:
(a) The pretermitted child may share only in the portion of the trust estate intended to benefit living children.
(b) The share of each pretermitted child is equal to the total value of the portion of the trust estate intended to benefit the living children divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the trust.
(c) To the extent possible, the interest of each pretermitted child in the trust estate shall be of the same character, whether equitable or legal, as the interest the settlor gave to the living children under the trust.
(4) If a settlor has no child living when the settlor executes a trust instrument, a pretermitted child is entitled to a share of the trust estate as though the settlor had died intestate and had not executed the trust instrument.
(5) A pretermitted child may recover the share of the trust estate to which the child is entitled as follows:
(a) If the pretermitted child is entitled to a share of the trust estate under subsection (3) of this section, the share must be recovered from the other children.
(b) If the pretermitted child is entitled to a share of the trust estate under subsection (4) of this section, the share must be recovered from the beneficiaries on a pro rata basis, out of the portions of the trust estate passing to those persons under the trust.
(c) In reducing the shares of the beneficiaries under this subsection, the character of the dispositive plan adopted by the settlor in the trust must be preserved to the extent possible. [Formerly 128.388]
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