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Encyclopedia > Pretermitted heir

A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know or did not know of the party at the time the will was written. The most common category of pretermitted heir is the pretermitted child, born after the execution of the will. Law (a loanword from Old Norse lag), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments for those who do not follow... Property law is the law that governs the various forms of ownership in real property (land as distinct from personal or moveable possessions) and in personal property, within the common law legal system. ... In the law, a will or testament is a documentary instrument by which a person (the testator) regulates the rights of others over the testators property or family after their death. ...

  • Rights of a pretermitted child:

Many jurisdictions have enacted statutes that permit a pretermitted child to demand an inheritence under the will. Some allow the child to claim their intestate share, while others limit the inheritence to an amount that is comparable to devises made in the will for the children who were alive when the will was written. This may be accomplished by proportionally reducing the gift under the will to the other children, or by reducing gifts under the will to non-family members. An exception common to many jurisdictions prohibits a pretermitted child from claiming an inheritence if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child. A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ... Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration. ...


Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made. This may be because the child was incorrectly believed to be dead, or was later adopted by the testator. Adoption is the legal act of permanently placing a child with a parent or parents other than the birth parents. ...


A will may contain a clause, however, which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will. A pretermitted heir may also be denied the right to take under the will if they received an advancement against their inheritence - an inter vivos gift from the testator of an amount equivalent to what the pretermitted child might take under the will. A living trust (or inter vivos trust) is a type of trust created for the purpose of holding ownership to an individuals assets during the persons lifetime, and for distributing those assets after death. ...


Pretermitted spouse

Another party for whom the state might provide is the pretermitted spouse, whom the testator does not marry until after the execution of the will. Many jurisdictions provide that a pretermitted spouse will receive either her intestate share (what she would have received had the testator died with no will), or the elective share (a set amount or formula provided by law for spouses who are disinherited in the will). Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration. ... An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedents will. ...


Like a pretermitted child, a pretermitted spouse may be explicitly disinherited in the will, or may be excluded from taking under the will if they received an advancement on their inheritence in anticipation of the marriage. A pretermitted spouse may also disclaim any interest in the testator's estate through an antenuptual or prenuptial agreement. A prenuptial agreement, sometimes referred to as an antenuptial agreement, but commonly abbreviated to prenup, is a contract entered into by two people prior to marriage or civil union. ...


  Results from FactBites:
 
heir: Definition and Much More From Answers.com (705 words)
The group of heirs of a person may differ from the group that the law recognizes as his next of kin, but the law that dictates the constitution of both is now largely statutory, and in many states of the United States the statutes have abolished all distinction.
An heir presumptive is in the same position as an heir apparent except that his claim may be superseded, as by the birth of one more closely related to the owner.
These terms are much used with regard to dynastic succession; an heir apparent is in such connection the undisputed heir to the throne if he survives the incumbent; an heir presumptive is one who will inherit the throne if nothing intervenes—especially the birth of a child to the incumbent.
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