Estate Planning · Probate · Wills

Pretermitted Heirs in Pennsylvania: When a Will Leaves Out a Child

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A child born or adopted after a will was executed may be entitled to a statutory share of the estate even if the will does not mention them, under 20 Pa.C.S. §2507. Pennsylvania’s pretermitted heir statute protects children who were omitted from a will not because the testator intended to disinherit them but because the will was written before the child existed. A child who was intentionally disinherited has no claim under this statute. A child who was simply forgotten has a statutory right to a share equal to what they would have received under intestate succession.

Pennsylvania’s pretermitted heir statute is codified at 20 Pa.C.S. §2507. Intestate succession shares for purposes of calculating a pretermitted heir’s entitlement are governed by 20 Pa.C.S. §2101 et seq. Estate administration matters are handled through the Pennsylvania Unified Judicial System Orphans’ Court division.

Stephen H. Lebovitz is an estate planning and probate attorney in Pittsburgh who represents beneficiaries and estates in pretermitted heir claims, will contests, and estate administration disputes throughout Western Pennsylvania.

The most common pretermitted heir situation is a parent who wrote a will before having children and never updated it. A less common but equally valid situation is a child who was adopted after the will was executed. In both cases, Pennsylvania law presumes the omission was an oversight, not a deliberate decision, and gives the omitted child a statutory remedy. The burden is on the estate to prove the omission was intentional if it wants to defeat the claim.

At Lebovitz & Lebovitz, P.A., we represent pretermitted heirs and estates in omitted child disputes throughout Pittsburgh and Western Pennsylvania.

What Pennsylvania’s Pretermitted Heir Statute Actually Says

The statute protects children the will forgot, not children the testator decided to exclude.

Under 20 Pa.C.S. §2507, if a testator fails to provide in their will for a child born or adopted after the will was executed, that child receives a share of the estate equal to what they would have received if the testator had died without a will, unless it appears from the will that the omission was intentional, or unless the testator provided for the child outside the will by settlement or other transfer intended as a substitute for a testamentary provision. The statute applies to biological children born after execution and to children legally adopted after execution. It does not apply to children who were alive and known to the testator when the will was written but were simply not included. A child who existed at the time of execution and was left out was either intentionally omitted or was the subject of a drafting error that may be addressed through other legal theories, but not through the pretermitted heir statute. The pretermitted heir statute is exclusively for children who did not exist, or were not yet the testator’s legal child, when the will was signed. For surviving spouses omitted from a will, Pennsylvania provides separate protection under the elective share statute. See omitted spouse elective share in Pennsylvania.

How the Share Is Calculated

A pretermitted child receives the share they would have taken under Pennsylvania’s intestate succession statute, as if the testator had died without a will.

Under 20 Pa.C.S. §2101 et seq., the intestate share depends on who else survives the testator. If the testator is survived by a spouse and children, the spouse takes the first $30,000 of the estate plus one-half of the balance, and the children share the remainder equally. If there is no surviving spouse, the children divide the entire estate equally. A pretermitted child is added to the pool of children for purposes of this calculation. If the will left the estate to three children equally and a fourth pretermitted child asserts a claim, the pretermitted child receives a one-quarter share equal to what each of the other three children would have received under intestacy, and the shares of the will’s beneficiaries are reduced proportionally to fund that share. The pretermitted child’s share is carved from estate property not passing to a surviving spouse, rather than from any single beneficiary’s bequest. The practical effect is that the pretermitted child takes at the expense of all beneficiaries under the will, not just the siblings who were named.

When the Omission Was Intentional

The pretermitted heir statute does not apply when the testator intentionally left out a child. But proving intentional omission is the estate’s burden, not the child’s.

Pennsylvania courts presume that an omission from a will is unintentional when the child was born or adopted after execution. The estate must rebut that presumption by showing from the face of the will or from extrinsic evidence that the testator knew about the child and deliberately chose not to provide for them. A will that includes a general disinheritance clause, such as “I have intentionally made no provision for any other children whether born before or after the date of this will,” is strong evidence of intentional omission. A will that is simply silent about children born after execution, without any language addressing future children, will generally not be sufficient to defeat a pretermitted heir claim. Courts have been cautious about allowing extrinsic evidence to defeat a statutory right, requiring clear and convincing evidence that the omission reflected a deliberate choice rather than an oversight. The more common scenario is a will drafted before any children existed, where the testator never thought about future children at all. In those cases, courts typically find that the omission was not intentional within the meaning of the statute.

Lifetime Transfers as a Substitute for a Bequest

A pretermitted heir claim can be defeated if the testator made a lifetime transfer to the child that was intended as a substitute for a testamentary provision.

If the testator set up a trust for the child, made a substantial gift documented as an advance on an inheritance, or took other steps to provide for the child outside the will, the estate can argue that those transfers satisfied the testator’s obligation to the child and defeat the pretermitted heir claim. The key is intent. The transfer must have been made with the intent to substitute for a testamentary provision, not simply as a gift or an act of generosity. A parent who sets up a college fund for a child born after the will was written, without any documentation that the fund was meant as a substitute for an inheritance, has probably not defeated a pretermitted heir claim.

How to Assert a Pretermitted Heir Claim in Pennsylvania

A pretermitted heir claim is asserted in the Orphans’ Court as part of the estate administration proceeding, and timing matters.

The claim must be raised before the estate is distributed and closed. A pretermitted heir who waits until after the executor has distributed the estate to the named beneficiaries faces a significantly harder recovery. The practical path is to file notice with the Register of Wills and petition the Orphans’ Court to recognize the pretermitted heir’s share before any distribution occurs. The executor has a duty to notify known creditors and interested parties, but may not be aware of a pretermitted child’s existence, particularly if the child is the result of a relationship the testator did not publicize. The pretermitted heir or their representative must take affirmative steps to assert the claim. Evidence needed to support the claim includes proof of birth or adoption after the will was executed, documentation establishing the testator was the legal parent, and the date the will was signed. Establishing that the omission was not intentional, typically shown by the absence of any disinheritance language and the timing of the birth or adoption relative to execution, is part of the claimant’s presentation.

For related estate administration issues, see our pages on estate administration and probate in Pennsylvania, intestate succession in Pennsylvania, family settlement agreements, and executor duties in Pennsylvania.

Frequently Asked Questions

What is a pretermitted heir in Pennsylvania?

A pretermitted heir is a child born or adopted after a will was executed who was not provided for in the will. Under 20 Pa.C.S. §2507, that child is entitled to a share of the estate equal to their intestate share unless the omission was intentional or the testator provided for the child through a lifetime transfer intended as a substitute for a bequest.

Does a pretermitted heir claim apply if a child was alive when the will was written?

No. Pennsylvania’s pretermitted heir statute applies only to children born or adopted after the will was executed. A child who was alive when the will was written and was simply not included was either intentionally omitted, in which case no statutory remedy exists, or was omitted by drafting error, which may be addressed through other legal theories such as a will contest or a reformation claim. The statute does not create a remedy for children who existed at execution and were left out.

Can a pretermitted heir claim be defeated?

Yes, in two ways. First, if the estate can show from the will or from extrinsic evidence that the omission was intentional, such as a disinheritance clause covering future children. Second, if the testator made a lifetime transfer to the child that was intended as a substitute for a testamentary provision. Both defenses must be proven by the estate. The statute presumes the omission was unintentional, and the burden of proving otherwise falls on those who oppose the claim.

How much does a pretermitted child receive?

The pretermitted child receives the share they would have taken under Pennsylvania’s intestate succession statute, as if the testator had died without a will. That share depends on who else survives the testator. If there are other children and no surviving spouse, the estate is divided equally among all children including the pretermitted heir. The shares of the will’s named beneficiaries are reduced proportionally to fund the pretermitted child’s share from estate property not passing to a surviving spouse.

Does a pretermitted heir claim affect non-probate assets?

No. A pretermitted heir claim applies only to the probate estate, meaning assets that pass through the will. Non-probate assets such as retirement accounts with named beneficiaries, jointly held property with survivorship rights, life insurance proceeds, and assets in a trust pass outside the estate and are not affected by a pretermitted heir claim. A child who was named as beneficiary on those accounts receives them regardless of the pretermitted heir claim. A child who was not named receives nothing from those assets through this statutory remedy.

This page was prepared for informational purposes by the estate planning attorneys at Lebovitz & Lebovitz. Pennsylvania’s pretermitted heir statute is at 20 Pa.C.S. §2507. Intestate succession is governed by 20 Pa.C.S. §2101 et seq.

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This page provides general information about Pennsylvania law. It does not constitute legal advice. Every case is different. For advice about your specific situation, contact Lebovitz & Lebovitz, P.A.