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Estate, Powers and Trusts, § 5-3.2: Revocatory Effect of Birth of Child After Execution of Will

A will is one of the most flexible estate documents. When you create a will, you can decide what property to leave to which of your loved ones. You can even choose to leave property to entities such as charitable organizations, religious organizations, or schools. Generally, the law allows you to do whatever you want and will follow the instructions that you leave in your properly executed will. Of course, there are exceptions to this general rule. One exception is related to provision leaving property to your children. In order to make sure that all children are treated alike, under Estate, Powers and Trusts, § 5-3.2 Revocatory effect of birth of child after execution of will, if a will provides that the testator’s children receive a share of his (or her) estate, if you provide for your children, and you have other child but fail to update your will to include that child, the law will step in and give the after born child a share of your estate. There are also rules to protect surviving spouses. To learn more about special provisions for children and spouses under New York estate law, contact a New York estate lawyer who understands the nuances of New York estate law. Failure to understand these rules may result in problems during probate and delays in property distribution.

Revocatory effect of birth of child after execution of will

The law protects children who were born after a parent’s will was executed. Thus, a you executed a will when you had two children, leaving each property, but you do not update your will after the birth off your third child, the third child will get a proportionate share of your property should you pass away without ever changing the will.


Ron and Julie have 2 children, Diane and Leo. Ron executes a will, leaving each child $100,000 cash. Ten years later, Ron and Julie have another child, Kathy. A few years after Kathy’s birth, Ron is killed in a car accident. Ron never updated his will to include Kathy. Under Estate, Powers and Trusts, § 5-3.2 Revocatory effect of birth of child after execution of will, Kathy will receive a disposition from Ron’s will, equal to Diane and Leo’s share.

Ron and Julie have 2 children, Diane and Leo. Ron executes a will that leaves everything to Diane, and nothing to Diane or Leo. Ten years later, Ron and Julie have another child, Kathy. A few years after Kathy’s birth, Ron is killed in a car accident. Ron never updated his will after Kathy’s birth. Because Ron did not include Diane or Leo in his will, Kathy is not entitled to inherit either.

Protection for children under intestacy

New York estate law also protects children whose parents pass away without leaving a will. Under New York’s laws related to intestate succession, children, along with a surviving spouse are entitled to inherit all of an intestate decedent’s property.

  • Children, no surviving spouse: If the decedent passes away without having a surviving spouse, then the children are entitled to receive his (or her) entire estate, divided equally. If a child predeceased the parent, then the child’s children receive the deceased’s child’s share. Adopted children are treated in the same way as biological children, while foster children and stepchildren who were never legally adopted are not entitled to share in the estate. If you have questions about a child’s share of an intestate estate, contact an experienced New York estate lawyer, to discuss your specific case.
  • Surviving spouse and children: If an intestate decedent leaves children, as well as a surviving spouse, the children and surviving spouse share in the estate. The surviving spouse, however, gets more than the children. The spouse is entitled to receive the firsts $50,000 of the estate, as well as 50% of the remaining estate, while the children receive the remaining 50% of the estate divided equally.
  • Surviving spouse: If the decedent leaves a surviving spouse, but no children (or grandchildren), then the surviving spouse is entitled to 100% of the property in the estate.
Property not affected

As an estate lawyer in New York will explain, it is important to understand that not all of a decedent’s property is necessarily part of his probate estate affected by the provisions related to the an after born child’s entitlement to a part of the estate. Only property that is considered “probate property” is affected. Property that is exempt includes:

  • Trust property: Property that a decedent transfers to a trust during his (or her) lifetime is not part of the probate estate.
  • Life insurance proceeds. Life insurance proceeds are not probate property as there is a designated beneficiary who would receive them. The exception to this rule is if the beneficiary is the decedent’s estate.
  • Retirement accounts. Like life insurance proceeds, finds in retirement accounts such as IRAs and 401(k) plans go to the designated beneficiary.
  • POD and TOD accounts. Money in a payable-on-death (POD) bank account go to the designated transferee. Similarly, securities in a transfer-on-death (TOD) account go to the designated transferee.
  • Joint tenancy property. Real estate or other property you own with someone else in joint tenancy. Often times, the family home is held in joint tenancy with the other spouse.

As an estate lawyer in New York will explain, these non-probate assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. Why oftentimes the co-owner or beneficiary is the spouse or child, sometimes it is someone else.

Reviewing and updating your will

The birth of a child is a good time to review and update your will and other estate planning documents. While the law will intervene and make sure that your after born children will be treated the same as children included in your will, it is always best to include your exact wishes in your estate documents. Doing so will minimize the potential for delays in probate and disputes. In addition, if you make a practice of regularly review your estate documents, you will have the opportunity to revisit not only the provisions related to your children, but your entire will to ensure that your current wishes are reflected in your will.

Related statutory provisions
  1. Right of election by surviving spouse: Estates, Powers and Trusts, § 5-1.1-A
  2. Descent and distribution of a decedent's estate: Estates, Powers and Trusts, § 4-1.1
Estate, Powers and Trusts, § 5-3.2 Revocatory effect of birth of child after execution of will

(a) Whenever a testator has a child born after the execution of a last will, and dies leaving the after-born child unprovided for by any settlement, and neither provided for nor in any way mentioned in the will, every such child shall succeed to a portion of the testator's estate as herein provided:

(1) If the testator has one or more children living when he executes his last will, and:

(A) No provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate.

(B) Provision is made therein for one or more of such children, an after-born child is entitled to share in the testator's estate, as follows:

(i) The portion of the testator's estate in which the after-born child may share is limited to the disposition made to children under the will.

(ii) The after-born child shall receive such share of the testator's estate, as limited in subclause (i), as he would have received had the testator included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the estate to each such child.

(iii) If it appears from the will that the intention of the testator was to make a limited provision which specifically applied only to the testator's children living at the time the will was executed, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate.

(iv) To the extent that it is feasible, the interest of the after-born child in the testator's estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest which the testator conferred upon his children under the will.

(2) If the testator has no child living when he executes his last will, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate.

(b) The term “after-born child” shall mean a child of the testator born during the testator's lifetime or in gestation at the time of the testator's death and born thereafter.  For purposes of this §, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to § 4-1.2 of this chapter.

(c) The after-born child may recover the share of the testator's estate to which such child is entitled, either from the other children under subparagraph (a) (1) (B) or the testamentary beneficiaries under subparagraph (a) (2), ratably, out of the portions of such estate passing to such persons under the will.  In abating the interests of such beneficiaries, the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.

Contact the Law Offices of Stephen Bilkis & Associates

If you have concerns related to the rights of children to inherit, contact an experienced estate lawyer serving New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience successfully representing clients in complex estate matters. We have the skill, knowledge and resources to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Suffolk County, Westchester County, Bronx, Brooklyn, Long Island, Manhattan, Queens, and Staten Island.

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