The Oklahoma Bar Journal November 2024

O MITTED CHILD 1 CONCERNS HAVE THE POTENTIAL to upend client expectations in probate litigation. With the increased popularity of widely available genetic testing kits, such as 23andMe and Ancestry, these concerns will become all the more prevalent. After over a century of silence, recent Oklahoma case law endeavors to interpret critical statutes and questions in omitted child litigation. To prepare for the inevitable increase in omitted child litigation, it is critical to understand the underlying concepts and the impact of these recent decisions.

fails to provide for any “children” or “child” in the will. 6 Similarly, Oklahoma’s intestate succession laws also discuss inheritance by a decedent’s “children” or “child.” 7 In either case, the opening question is whether the purported child qualifies as a “child.” With respect to Section 132, the word “child” denotes legal heir. 8 Importantly, in Oklahoma, genetic testing results from 23andMe and Ancestry alone do not establish paternity in a probate action. Instead, the pur ported child must seek to establish paternity pursuant to 84 O.S. §215. Typically, in genetic testing kit cases, the only applicable provi sion of Section 215 is Subsection (d), which states, “The father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.” 9 The existence of a parent-child

In Oklahoma, omitted child laws are a creature of statute. In appropriate circumstances, Oklahoma’s omitted child statutes apply to modify the provisions of a will and grant the omitted child the proper intestate share of the decedent’s estate. 2 Section 132 of the Oklahoma Statutes on wills and succession provides: When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was inten tional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section. 3

This raises several questions. First, does the purported omitted child qualify as a “child”? Second, did the testator actually omit to provide for the child? Third, was the omission intentional? And fourth, if the will unintentionally omitted the child, what portion of the probate estate is the omit ted child entitled to receive? To answer these questions, as with all questions of will construction, you must determine the testator’s intent. 4 Intent is determined as of the date of execution of the will and not from information the tes tator subsequently acquired. 5 DOES THE PURPORTED CHILD QUALIFY AS A ‘CHILD’ OF THE TESTATOR UNDER THE STATUTE? Oklahoma’s omitted child stat ute only applies when the testator

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

NOVEMBER 2024 | 15

THE OKLAHOMA BAR JOURNAL