Understanding the “Omitted Child” Rule of MGL c. 190B § 2-302
Introduction: A Silent Clause That Can Cost Six Figures
Picture this: a parent leaves one child out of the will to spare feelings. Instead of peace, the estate lands in court, assets are frozen, and legal fees devour the inheritance. The cause is usually silence—not malice. Under Massachusetts law, merely omitting a child can be interpreted as forgetting them, not excluding them, and that child may sue for a share of the estate.
What MGL c. 190B § 2-302 Actually Says
The so-called “omitted child” statute protects children born or adopted after a will is signed. If the parent does not clearly provide for—or clearly disinherit—that child, the law grants the child a slice of the estate, often equal to what they would receive if the parent had died without a will. The rule does not apply when the will shows the omission was intentional or when the child is otherwise provided for outside the estate plan.
Why Silence Guarantees Litigation
When a child discovers they were “forgotten,” they can file a petition in probate court. The estate’s personal representative must hire counsel, notify all beneficiaries, and pause every distribution until the case ends. Even straightforward estates can be delayed 18–24 months while costs mount. In some cases, years of litigation have consumed five- and six-figure sums in fees that could have gone to heirs.
Best Practice: Disinherit Explicitly
If parents truly want a child to receive nothing, their estate-planning documents must say so in plain English, for example: “I intentionally make no provision for my child, Alex Smith.” Pairing that declaration with a no-contest clause (sometimes called a “poison pill”) can further discourage frivolous challenges. In wills, leaving a nominal gift plus a no-contest clause may work; in trusts, even a small bequest makes the child a beneficiary with rights to accountings—inviting new headaches. When in doubt, leave them out entirely.
Softening the Blow Without Compromising Clarity
A private letter can explain the decision in compassionate terms without weakening the legal language. Parents might also use life-insurance proceeds or payable-on-death accounts to provide for the child outside the probate estate. Whatever the approach, clarity in the legal documents prevents painful surprises later.
Update, Don’t Hesitate
Life events—birth, adoption, estrangement, reconciliation—should trigger an estate-plan review. Waiting invites the very confusion § 2-302 was designed to resolve. Annual check-ins with counsel keep plans current and litigation-proof.
Conclusion: Clear Words Now, No Drama Later
Omitting a child’s name may feel kinder, but Massachusetts law interprets silence as forgetfulness, not forgiveness. One explicit sentence of disinheritance—paired with thoughtful planning—can save heirs from protracted probate battles and protect the parent’s true intentions.
Need help crafting an airtight estate plan? Cote Law Group guides Massachusetts families through wills, trusts, and every nuance of probate law.
Disclaimer: This article is for educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Estate planning is fact-specific; consult an attorney at Cote Law Group to discuss your situation.