The Oklahoma Bar Journal November 2024

the estate. Specifically, the court observed that if the testator’s brother received the entirety of his specific bequest under the appor tionment exemption in Section 133, he would effectively receive the entire estate, thereby eviscerating the purpose of Section 132. 40 As such, the Oklahoma Supreme Court remanded the case to the district court to apportion the estate among the testator’s brother and omitted children. In doing so, the court seems to have diverged from the express provisions of Sections 132 and 133 regarding the portion of the estate to which the omitted chil dren are entitled. With no statutory guidance, it is unclear how courts and practitioners should approach similar apportionment issues in the future. The only guidance available currently is that the district court seemingly has equitable discretion to apportion the estate among spe cific devisees and omitted children in some portion between 0% and 100% of the specific devise. Further, in Parker , the entirety of the specific devise would have gone to the testator’s omitted children if they received their statutory share, which caused the court to hold that the obvious intention of the testator would be defeated. Would the outcome be different if the portion of the specific devise needed to satisfy the omitted child’s statutory share was less than 100% of the specific devise? If yes, how much of the specific devise can be used to satisfy the omitted child’s statutory share before the testator’s intent is defeated ? Parker does not provide any guidance or framework for courts or practitioners to evaluate this issue down the line. All that is currently known is that taking 100% of the specific devise defeats the obvious intention of the testator.

If the testator’s omission to provide for a child was intentional, the child is not protected by Section 132. 25 Intent to disinherit the child must appear within the four corners of the will in strong and convincing language. 26

the application of Section 133 to the apportionment of an omitted child’s share of the estate. There, the only bequest in the testator’s will was: “I more than owe my bro Herman what I will recieve [ sic ] in my settlement from my workers comp upon my death wish it to be given to him,” and the will did not address the disposition of the residue. 36 The workers’ compensation settlement bequeathed to the testator’s brother comprised virtually all of the estate. 37 In an analysis of first impression, the Oklahoma Supreme Court held that Section 133 is intended to mod ify Section 132 and provide for the specific manner of allocating estate assets to satisfy an award to omitted children. 38 Parker held that Section 133’s apportionment exemption applied because the will demon strated the testator’s obvious inten tion for his brother to receive the workers’ compensation settlement, and such intent would be defeated if the entirety of this property were awarded to the omitted children. 39 However, the specific facts in Parker presented a problem regarding the application of Section 133 and the equitable apportionment of

to be entitled to receive from the estate other than those provided for in the will was inapplicable to an omitted child’s statutory share. 32 Though the categories set forth in James are a useful starting point, Oklahoma law compels careful analysis before application. IF OMISSION WAS UNINTENTIONAL, WHAT SHARE DOES THE OMITTED CHILD RECEIVE? Courts must next decide the omitted child’s share of the estate. Generally speaking, the omitted child will receive an intestate share. 33 Further, 84 O.S. §133 34 addresses the apportionment of the omitted child’s share among the devisees and legatees of the estate. Although Section 133 was adopted in 1910, it took over a century for any case law to mean ingfully discuss its application. The interpretive drought ended with two published Oklahoma appellate decisions addressing Section 133 in 2023, and more are likely to follow. In the Matter of Estate of Parker , 35 the Oklahoma Supreme Court, in a 6-3 decision, directly addressed

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.

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THE OKLAHOMA BAR JOURNAL