The Oklahoma Bar Journal November 2024

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Pretermitted Heirs: A Basic Overview By Hal Wm. Ellis 1

T HIS ARTICLE IS AN OVERVIEW OF THE BASIC OKLAHOMA LAW regarding pretermitted heirs. It hopefully will provide the practitioner with the current relevant statutes and recent case law governing the omission of an heir from a will.

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. Section 131 provides identical rights to children born after the execution of a will. 5 As with most matters involving the interpretation of wills, the key concept is the intent of the testator controlling. 6 When omission of an heir is the issue presented to the court, the testator’s intent is par amount. However, §132 provides that an omission must be expressly intentional to prevent an omitted child from being considered preter mitted. 7 Thus, the testator’s intent is only what is expressed in a will in instances of pretermitted heirs. STATUTE OF LIMITATIONS Also of importance to the pre termitted heir are the two statutes of limitations that apply to probate

court decrees that could impact their ability to exercise their rights. A pretermitted heir who wishes to contest a will admitted to probate in an attempt to receive their intestate share of an estate must meet the elements of 58 O.S. §67, which affects those who wish to contest the admission of a will and provides the following: If no person, within three (3) months after the admission to probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a period of one (1) year after their respective disabilities are removed. 8 If a pretermitted heir seeks to challenge a final decree and was not a party to the proceedings, they must meet the elements of 58 O.S. §723, providing:

INTRODUCTION What is a pretermitted heir? A pretermitted heir is any child or descendant who has been omitted by a testator’s will but is still entitled to a share of the testator’s estate. This omission can occur either at the execution of the will or because the pretermitted child was not born before the will’s execution. 2 Where it has been found that an heir has been omitted unintentionally, that heir is granted rights to an intes tate share of the testator’s estate by statute under 84 O.S. §132. 3 It should be noted that Oklahoma courts have ruled that §132 can only be applied to wills, not to trusts. 4 STATUTORY AUTHORITY Oklahoma statutory rights of pretermitted children are found in 84 O.S. §§131, 132. Section 132 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

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