75-2-302 - Omitted children. - Utah Statutes

75-2-302. Omitted children.
(1) Except as provided in Subsection (2), if a testator fails to provide in his will for anyof his children born or adopted after the execution of the will, the omitted after-born orafter-adopted child receives a share in the estate as follows:
(a) If the testator had no child living when he executed the will, an omitted after-born orafter-adopted child receives a share in the estate equal in value to that which the child wouldhave received had the testator died intestate, unless the will devised all or substantially all of theestate to the other parent of the omitted child and that other parent survives the testator and isentitled to take under the will.
(b) If the testator had one or more children living when he executed the will, and the willdevised property or an interest in property to one or more of the then-living children, an omittedafter-born or after-adopted child is entitled to share in the testator's estate as follows:
(i) The portion of the testator's estate in which the omitted after-born or after-adoptedchild is entitled to share is limited to devises made to the testator's then-living children under thewill.
(ii) The omitted after-born or after-adopted child is entitled to receive the share of thetestator's estate, as limited in Subsection (1)(b)(i), that the child would have received had thetestator included all omitted after-born and after-adopted children with the children to whomdevises were made under the will and had given an equal share of the estate to each child.
(iii) To the extent feasible, the interest granted an omitted after-born or after-adoptedchild under this section shall be of the same character, whether equitable or legal, present orfuture, as that devised to the testator's then-living children under the will.
(iv) In satisfying a share provided by this section, devises to the testator's children whowere living when the will was executed abate ratably. In abating the devises of the then-livingchildren, the court shall preserve to the maximum extent possible the character of thetestamentary plan adopted by the testator.
(2) Neither Subsection (1)(a) nor Subsection (1)(b) applies if:
(a) it appears from the will that the omission was intentional; or
(b) the testator provided for the omitted after-born or after-adopted child by transferoutside the will and the intent that the transfer be in lieu of a testamentary provision is shown bythe testator's statements or is reasonably inferred from the amount of the transfer or otherevidence.
(3) If at the time of execution of the will the testator fails to provide in his will for aliving child solely because he believes the child to be dead, the child is entitled to share in theestate 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 abateunder Section 75-3-902.

Amended by Chapter 324, 2010 General Session