Oklahoma Bar Journal
Are You My Father?
Omitted Child Litigation in the Era of Genetic Testing
By Logan L. James

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Omitted child[1] concerns have the potential to upend client expectations in probate litigation. With the increased popularity of widely available genetic testing kits, such as 23andMe and Ancestry, these concerns will become all the more prevalent. After over a century of silence, recent Oklahoma case law endeavors to interpret critical statutes and questions in omitted child litigation. To prepare for the inevitable increase in omitted child litigation, it is critical to understand the underlying concepts and the impact of these recent decisions.
In Oklahoma, omitted child laws are a creature of statute. In appropriate circumstances, Oklahoma’s omitted child statutes apply to modify the provisions of a will and grant the omitted child the proper intestate share of the decedent’s estate.[2]
Section 132 of the Oklahoma Statutes on wills and succession provides:
When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.[3]
This raises several questions. First, does the purported omitted child qualify as a “child”? Second, did the testator actually omit to provide for the child? Third, was the omission intentional? And fourth, if the will unintentionally omitted the child, what portion of the probate estate is the omitted child entitled to receive? To answer these questions, as with all questions of will construction, you must determine the testator’s intent.[4] Intent is determined as of the date of execution of the will and not from information the testator subsequently acquired.[5]
DOES THE PURPORTED CHILD QUALIFY AS A ‘CHILD’ OF THE TESTATOR UNDER THE STATUTE?
Oklahoma’s omitted child statute only applies when the testator fails to provide for any “children” or “child” in the will.[6] Similarly, Oklahoma’s intestate succession laws also discuss inheritance by a decedent’s “children” or “child.”[7] In either case, the opening question is whether the purported child qualifies as a “child.” With respect to Section 132, the word “child” denotes legal heir.[8] Importantly, in Oklahoma, genetic testing results from 23andMe and Ancestry alone do not establish paternity in a probate action. Instead, the purported child must seek to establish paternity pursuant to 84 O.S. §215. Typically, in genetic testing kit cases, the only applicable provision of Section 215 is Subsection (d), which states, “The father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.”[9] The existence of a parent-child relationship in a “paternity proceeding” is governed by the Oklahoma Uniform Parentage Act (OUPA).[10] Thus, evaluate the OUPA to assess whether the purportedly omitted child can establish status as a “child” of a decedent under Oklahoma law. This is especially true in genetic testing kit cases where the facts will, more likely, support a defense based upon a preexisting “presumed father” of the purportedly omitted child.[11] Further, because genetic testing kit cases lend themselves to the possibility that the supposed father will not be discovered for some time, perhaps even after the probate is closed, practitioners should be aware of the Oklahoma Supreme Court’s recent ruling in Matter of Est. of Georges regarding the limitations period to claim that a person qualifies as a “child.”[12]
DID THE TESTATOR OMIT TO PROVIDE FOR THE CHILD IN THE WILL?
The omitted child statute only applies if the testator failed to provide for the child in the will.[13] The statute does not secure a child with a minimum statutory share of the estate upon the parent’s death.[14] Recently, in In re Estate of James, the Oklahoma Supreme Court clarified that a child is not omitted where a testator intended to provide for the child in the will, but the bequest to the child fails or lapses.[15]
A child is not omitted simply because they are not specifically named in the will.[16] The testator can provide for children in the will by name or by class. This issue was addressed recently in In the Matter of Estate of Shepherd.[17] There, the testator’s children argued that they were omitted because they were not provided for by name in the will, and they were also not provided for as a separate, designated class.[18] Instead, the will left the majority of the property to the testator’s granddaughter and the residue of the estate to “all relatives.”[19] Shepherd held that a provision in the will leaving the residue of the estate to “all relatives” was sufficient to provide for the testator’s children by class, and therefore, the omitted child statutes did not apply.[20] The specificity of the described class should be analyzed when assessing omitted child issues.[21]
If the testator provides for the child through a testamentary trust created by the will or through a will naming the child but pouring all assets into an inter vivos trust incorporated into the will, then the child was not omitted, and Section 132 does not apply.[22] This is true even if the trust is subsequently amended to provide nothing for the child.[23] Presumably, transfers to a child outside of the will (and not addressed within, or otherwise incorporated into, the will), such as a transfer on death account, life insurance policy or separate trust, would not constitute provision for the child under the will.[24]
WAS THE OMISSION TO PROVIDE FOR THE CHILD IN THE WILL INTENTIONAL?
If the testator’s omission to provide for a child was intentional, the child is not protected by Section 132.[25] Intent to disinherit the child must appear within the four corners of the will in strong and convincing language.[26] Extrinsic evidence is inadmissible unless the will is ambiguous on its face.[27] Even the disposition of the entire estate does not alone evince an intent to omit a child.[28]
In James, the Oklahoma Supreme Court freshly observed that there are many ways a person can express the intention to omit to provide for a child in their will, including:
(1) expressly state that the named child is to receive nothing; (2) provide only a nominal amount for the child who claims to be pretermitted; (3) name a child, but then leave them nothing; (4) declare any child claiming to be pretermitted take nothing; or (5) specifically deny the existence of members of a class to which the claimant belongs coupled with a complete disposition of the estate.[29]
Notwithstanding the broad reference to category (5) in James, other Oklahoma cases have held this could be insufficient or give rise to an ambiguity in the will if the testator falsely denied in the will that he had any children or any other unidentified children.[30]
Still, Oklahoma case law contains potential inconsistencies regarding a will that devises classes of omitted persons nothing or some minimal sum as a means of disinheritance. For example, in Bridgeford v. Chamberlin’s Estate, the Oklahoma Supreme Court held that a will limiting to $5 the share of any person who challenged the estate plan claiming to be a pretermitted “child” sufficiently evidenced the testator’s intent to disinherit the omitted child, stressing that this was not a “‘simple’ no contest clause” provision, which would seemingly be invalid.[31] Bridgeford should be compared with the decision in In re Estate of Massey, where the court held that a “no contest” clause in a will capping at $1 the share of any person claiming to be entitled to receive from the estate other than those provided for in the will was inapplicable to an omitted child’s statutory share.[32] Though the categories set forth in James are a useful starting point, Oklahoma law compels careful analysis before application.
IF OMISSION WAS UNINTENTIONAL, WHAT SHARE DOES THE OMITTED CHILD RECEIVE?
Courts must next decide the omitted child’s share of the estate. Generally speaking, the omitted child will receive an intestate share.[33] Further, 84 O.S. §133[34] addresses the apportionment of the omitted child’s share among the devisees and legatees of the estate. Although Section 133 was adopted in 1910, it took over a century for any case law to meaningfully discuss its application. The interpretive drought ended with two published Oklahoma appellate decisions addressing Section 133 in 2023, and more are likely to follow.
In the Matter of Estate of Parker,[35] the Oklahoma Supreme Court, in a 6-3 decision, directly addressed the application of Section 133 to the apportionment of an omitted child’s share of the estate. There, the only bequest in the testator’s will was: “I more than owe my bro Herman what I will recieve [sic] in my settlement from my workers comp upon my death wish it to be given to him,” and the will did not address the disposition of the residue.[36] The workers’ compensation settlement bequeathed to the testator’s brother comprised virtually all of the estate.[37]
In an analysis of first impression, the Oklahoma Supreme Court held that Section 133 is intended to modify Section 132 and provide for the specific manner of allocating estate assets to satisfy an award to omitted children.[38] Parker held that Section 133’s apportionment exemption applied because the will demonstrated the testator’s obvious intention for his brother to receive the workers’ compensation settlement, and such intent would be defeated if the entirety of this property were awarded to the omitted children.[39] However, the specific facts in Parker presented a problem regarding the application of Section 133 and the equitable apportionment of the estate. Specifically, the court observed that if the testator’s brother received the entirety of his specific bequest under the apportionment exemption in Section 133, he would effectively receive the entire estate, thereby eviscerating the purpose of Section 132.[40]
As such, the Oklahoma Supreme Court remanded the case to the district court to apportion the estate among the testator’s brother and omitted children. In doing so, the court seems to have diverged from the express provisions of Sections 132 and 133 regarding the portion of the estate to which the omitted children are entitled. With no statutory guidance, it is unclear how courts and practitioners should approach similar apportionment issues in the future. The only guidance available currently is that the district court seemingly has equitable discretion to apportion the estate among specific devisees and omitted children in some portion between 0% and 100% of the specific devise.
Further, in Parker, the entirety of the specific devise would have gone to the testator’s omitted children if they received their statutory share, which caused the court to hold that the obvious intention of the testator would be defeated. Would the outcome be different if the portion of the specific devise needed to satisfy the omitted child’s statutory share was less than 100% of the specific devise? If yes, how much of the specific devise can be used to satisfy the omitted child’s statutory share before the testator’s intent is defeated? Parker does not provide any guidance or framework for courts or practitioners to evaluate this issue down the line. All that is currently known is that taking 100% of the specific devise defeats the obvious intention of the testator.
Parker also did not clarify what language a will must contain to demonstrate the obvious intention of the testator that a specific devise or bequest go to a specific devisee. Although the application of the apportionment exemption in Parker was fairly apparent based upon the testator’s express explanation of the specific devise in the will, it is less clear what language is required in other circumstances. The significance of this uncertainty is highlighted by the recent Shepherd decision.[41] The will in Shepherd merely devised specific items of property to the testator’s granddaughter and, unlike Parker, did not explain why the granddaughter should receive the property.[42] Nonetheless, Shepherd suggested that if the testator’s children were unintentionally omitted, the holding in Parker would apply such that the specific devise to the granddaughter would be exempt from the apportionment of the shares awarded to the daughters as omitted children pursuant to Section 133.[43] The foregoing observation in Shepherd raises more questions than it answers. Namely, is a mere specific devise of property without an accompanying explanation sufficient to trigger the apportionment exemption in Section 133? If it is, then Shepherd could have a profound impact on the application of Section 133 to the apportionment of an omitted child’s statutory share. What is clear is that more guidance is still needed on the application of Section 133.
CONCLUSION
You can help your clients avoid the uncertain landscape of Oklahoma omitted child litigation. As with all probate litigation, the first line of defense to guard against omitted child concerns is a strong, tailored estate plan. Utilizing a trust offers the most protection since Oklahoma’s omitted child statutes simply do not apply to trusts. When drafting a will, specificity is best. Include explanations for specific devises or special language disclaiming unknown children or otherwise providing for unknown children in a de minimis manner. In the era of genetic testing, it is more important than ever that we encourage clients to consider their estate plans carefully.
ABOUT THE AUTHOR
Logan L. James is a shareholder with Hall Estill, where a significant portion of his practice focuses on trust and estate litigation. He graduated with highest honors from the TU College of Law in 2015.
ENDNOTES
[1] Oklahoma courts use “omitted” child and “pretermitted” child interchangeably.
[2] By definition, Oklahoma’s omitted child laws apply to wills, they do not apply to revocable inter vivos trusts or directly to probates passing intestate. See 84 O.S. §132; Estate of Jackson, 2008 OK 83, 194 P.3d 1269; and Welch v. Crow, 2009 OK 20, 206 P.3d 599.
[3] 84 O.S. §132. For convenience, this article discusses omitted children, but note that Section 132 also applies to the issue of any deceased child.
[4] Rogers v. Estate of Pratt, 2020 OK 27, ¶18, 467 P.3d 651, 655.
[5] Brown v. Crawford, 1984 OK CIV APP 59, ¶12, 699 P.2d 162, 164.
[6] 84 O.S. §132.
[7] 84 O.S. §213.
[8] Crawford, 1984 OK CIV APP 59, at ¶10.
[9] 84 O.S. §215(d).
[10] See 10 O.S. §§7700-103(A) and 7700-103(B).
[11] See 10 O.S. §§7700-204(A)-(B) and 7700-607. Although no Oklahoma appellate court has squarely addressed this issue in a published decision, this possible defense should at least be considered by counsel before any heir, devisee or legatee acquiesces to paternity proceedings. Further, it should be noted that the Oklahoma Supreme Court recently ruled that the statute in the OUPA setting forth the two-year statute of limitations related to an acknowledgment of paternity was a statute of limitations with exceptions, such as cases involving fraud, and not statute of repose. Scott v. Foster, 2023 OK 112, ¶22, 538 P.3d 1180, 1189.
[12] Where a party challenges an already-closed probate based on fraud, the challenge is subject to the statutory three-month limitations period to contest the will, rather than the general law of limitations. 2023 OK 123, ¶9, – P.3d – as corrected (Feb. 12, 2024).
[13] 84 O.S. §132.
[14] Jackson, 2008 OK 83, at ¶22.
[15] 2020 OK 7, ¶23, 472 P.3d 205, 212.
[16] In re Estate of Chester, 2021 OK 12, ¶11, 497 P.3d 284, 287.
[17] 2023 OK CIV APP 24, – P.3d –.
[18] Id. at ¶11.
[19] Id. at ¶3.
[20] Id. at ¶13.
[21] See Matter of Est. of Woodward, 1991 OK 25, ¶7, 807 P.2d 262, 264. (The Oklahoma Supreme Court held that a will provision stating that “all other persons are excluded” was insufficient to disinherit the testator’s children because the term “persons” does not qualify as a class of heirs which the testator intended to omit.).
[22] 84 O.S. §154; Murano v. Jacobs, 2016 OK CIV APP 50, ¶11, 377 P.3d 1258, 1261; Matter of Est. of Eversole, 1994 OK 114, ¶15, 885 P.2d 657, 664; and Miller v. First Nat. Bank & Tr. Co., 1981 OK 133, ¶8, 637 P.2d 75, 77.
[23] Murano, 2016 OK CIV APP 50, at ¶11.
[24] The statute applies “[w]hen any testator omits to provide in his will for any of his children.” 84 O.S. §132 (emphasis added). As such, Section 132 only applies to wills, not other estate planning vehicles completely outside of the will. See n. 2, supra.
[25] 84 O.S. §132.
[26] Chester, 2021 OK 12, at ¶19.
[27] Id.
[28] Id.
[29] 2020 OK 7, at ¶20 (footnotes omitted).
[30] Pratt, 2020 OK 27, at ¶24.
[31] 1977 OK 206, ¶8-13, 573 P.2d 694, 695-96.
[32] 1998 OK CIV APP 116, 964 P.2d 238.
[33] 84 O.S. §§131 and 132.
[34] 84 O.S. §133 reads: “When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in a will as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees, or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest or other provision in the will, would thereby be defeated; in such case such specific devise, legacy or provision may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted.”
[35] 2023 OK 50, 529 P.3d 203.
[36] Id. at ¶1.
[37] Id.
[38] Id. at ¶9.
[39] Id. at ¶12.
[40] Id.
[41] Although the applicable portion of Shepherd is dicta, it may still be viewed as fairly persuasive by some courts given the absence of controlling authority on this point.
[42] 2023 OK CIV APP 24, at ¶3.
[43] Id. at n. 2.
Originally published in the Oklahoma Bar Journal – OBJ 95 No. 9 (November 2024)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.