RSA 551:10 · Child Not Named

551:10 Child Not Named. –

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I.

In this section:

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(a)

"Estate" means all property of the testator subject to probate administration and disposition under the testator's will.

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(b)

"Devise" means any testamentary disposition of real or personal property made under the testator's will.

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II.

Except as provided in paragraph III, if a testator fails to provide in the testator's will for any of the testator's children born or adopted after the execution of the will, the omitted after-born or after-adopted child shall receive a share in the estate as follows:

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(a)

If the testator had no child living when the testator executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will. The share to which the omitted child shall be entitled under this subparagraph shall be satisfied first from the residue of the estate and if insufficient, from the other assets of the estate pro rata.

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(b)

If the testator had one or more children living when the testator executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows:

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(1)

The portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then-living children under the will.

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(2)

The omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in subparagraph (b)(1), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

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(3)

To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will.

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(4)

In satisfying a share provided by this paragraph, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.

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III.

Neither subparagraph II(a) or (b) shall apply if it appears from the will that the omission was intentional.

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IV.

If at the time of execution of the will the testator fails to provide in the testator's will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child. Source. RS 156:9. CS 165:9. GS 174:10. GL 193:10. PS 186:10. PL 297:10. RL 350:10. 2022, 261:1, eff. Jan. 1, 2023.

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