Dealing with the loss of a parent is a traumatic, emotional process that can be complicated by legal matters. These issues include a division of assets, equitable management of the decedent’s estate, and even, to whom things from a favorite pen to a sentimental spatula, will go. Despite the sensitive nature of death and loss, it is clear that these phenomena are not only replete with matters of the heart, but the wallet, too.
The legal issues that inform the ways in which one’s possessions are distributed to surviving children is complex, even within the most loving and supportive families. These matters can seem even more obscure however, when there are surviving children who were born or adopted after the execution of the decedent’s will. This is known in legal nomenclature as an “afterborn child.” Fortunately, there are a host of New York State estate laws that guide all surviving children, no matter when they were born, through the intricacies and legalities of estate law.
The After-Born Child Defined
An afterborn child is defined as a child born to a parent after the will of said parent has been executed. This includes children born during the deceased parent’s lifetime, as well as those who were in utero when their parent passed away. The status of an afterborn child is not predicated on their parents’ marital status, nor upon whether or not they are biological or legally adopted. In short, the afterborn child was born or adopted after the decedent created their will, likely without considering they might have additional children thereafter.
Legal Significance of an Afterborn Child
New York State’s Consolidated Estate, Power, and Trust Laws provide for children born or legally adopted by the decedent, even if they are not mentioned in their parent’s will. A scenario in which a child named in the will learns that they are to divide their parent’s assets with a sibling not previously known or mentioned in the will, can in some cases, prove difficult and troubling. Certainly there are families for which equitable asset distribution is both assumed and considered “the right thing to do.” For families for whom this is not the case, particularly ones in which legal inheritors suddenly appear after their parent has died, things can become complicated, arduous, and grievous at best.
When a parent forgets to add a child to their will, it is often not the result of malice or intentional disinheritance. Day-to-day life requires us to multitask on a myriad of responsibilities, making it sometimes difficult to tend to items that are part of a longer term, bigger picture. It is this kind of situation for which these laws were created, as they guide and support the rights of the afterborn. Children born or legally adopted after a will’s execution who have been explicitly disinherited however, are not classified nor protected as afterborn.
When It’s Time to Call an Estate Lawyer
Although most of us understand the importance of wills and their ability to speak for us when we are no longer able to speak for ourselves, the mere prospect of actually writing one can be overwhelming. Not knowing what a loved ones’ wishes are after they have passed however, can most assuredly be both overwhelming and stressful. Mercifully, the laws governing inheritance and wills in New York State include provisions for these kinds of situations and more.
Whether you are preparing a will that includes all the people you want it to, or need the law to guide survivors who may be accidentally disinherited, you need a local elder lawyer who is well versed in estate law and compassionate towards his clients.