Utah Code 75-2-302. Omitted children
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(1) Except as provided in Subsection (2) , if a testator fails to provide in his will for any of his children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:
Terms Used In Utah Code 75-2-302
- Court: means any of the courts of record in this state having jurisdiction in matters relating to the affairs of decedents. See Utah Code 75-1-201 v2
- Equal: means , with respect to biological sex, of the same value. See Utah Code 68-3-12.5
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Estate: includes the property of the decedent, trust, or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. See Utah Code 75-1-201 v2
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Intestate: Dying without leaving a will.
- Parent: includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question. See Utah Code 75-1-201 v2
- Property: includes both real and personal property or any interest therein and means anything that may be the subject of ownership. See Utah Code 75-1-201 v2
- Testator: A male person who leaves a will at death.
- Testator: includes an individual of either sex. See Utah Code 75-1-201 v2
(1)(a) If the testator had no child living when he 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.
(1)(b) If the testator had one or more children living when he 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:
(1)(b)(i) 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.
(1)(b)(ii) The omitted after-born or after-adopted child is entitled to receive the share of the testator’s estate, as limited in Subsection (1)(b)(i) , 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.
(1)(b)(iii) To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section shall 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.
(1)(b)(iv) In satisfying a share provided by this section, 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 court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
(2) Neither Subsection (1)(a) nor Subsection (1)(b) applies if:
(2)(a) it appears from the will that the omission was intentional; or
(2)(b) the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
(3) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he 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.
(4) In satisfying a share provided by Subsection (1)(a) , devises made by the will abate under Section 75-3-902 .