“After-Born” Children and their Parents’ Estate

February 25, 2004

A recent case, Estate of Magrow, NYLJ, May 16, 2001 at 20, Col. 4 (Surr. Ct. Kings Co.), addressed the question of whether “after-born children” have a right to a portion of their parent’s estate.

“After-born children” are children born after the creation of their parent’s Will. New York Law allows after-born children the right to share in their parent’s estate if the parent did not provide for them in the Will and the child is not otherwise provided for by the parent’s assets. In this NY case, a parent created a Will providing for his 3 children. Later, he had 2 additional chidren. He designated all 5 children beneficiaries of a life insurance policy purchased after the Will execution (and after the birth of all of his children). The court held that the beneficiary designation of the insurance shows that the parent sufficiently provided for the after born children. As a result, the court did not permit the children’s claim to a portion of the parent’s estate.

It is important to realize that the value of the insurance in relation to the parent’s entire estate is irrelevant. The court did not determine whether the insurance policy is equitable or just. The court looks to determine whether the parent made financial provisions for the after-born children which would show the parent intended to provide for the after-born children.

In arriving at a decision, the court looks to the facts and circumstances of each case. As a suggestion, in order to avoid litigation in this area, the attorney should draft documents which provide for all of the client’s children as a class, (without naming them) or to have the Will read: ‘to all of my children born to my marriage to ‘X’ “. As estate planning attorneys, our firm advises our clients to review their estate planning documents such as their Will, Trusts, Health Care Proxies, Living Wills and Powers of Attorney, after changes in the client’s family situation (i.e., births, deaths, separation, divorce and adoption) and, at least every 3 years. This recent court decision dealing with after-born children is a good example of how estate plans may not fulfill the client’s actual expectation and intention if the estate planning document doesn’t provide for after-born children and/or the client does not review their estate planning on a regular basis.