Oklahoma Bar Journal
Pretermitted Heirs: A Basic Overview
By Hal Wm. Ellis[1]
This article is an overview of the basic Oklahoma law regarding pretermitted heirs. It hopefully will provide the practitioner with the current relevant statutes and recent case law governing the omission of an heir from a will.
INTRODUCTION
What is a pretermitted heir? A pretermitted heir is any child or descendant who has been omitted by a testator’s will but is still entitled to a share of the testator’s estate. This omission can occur either at the execution of the will or because the pretermitted child was not born before the will’s execution.[2] Where it has been found that an heir has been omitted unintentionally, that heir is granted rights to an intestate share of the testator’s estate by statute under 84 O.S. §132.[3] It should be noted that Oklahoma courts have ruled that §132 can only be applied to wills, not to trusts.[4]
STATUTORY AUTHORITY
Oklahoma statutory rights of pretermitted children are found in 84 O.S. §§131, 132. Section 132 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.
Section 131 provides identical rights to children born after the execution of a will.[5]
As with most matters involving the interpretation of wills, the key concept is the intent of the testator controlling.[6] When omission of an heir is the issue presented to the court, the testator’s intent is paramount. However, §132 provides that an omission must be expressly intentional to prevent an omitted child from being considered pretermitted.[7] Thus, the testator’s intent is only what is expressed in a will in instances of pretermitted heirs.
STATUTE OF LIMITATIONS
Also of importance to the pretermitted heir are the two statutes of limitations that apply to probate court decrees that could impact their ability to exercise their rights. A pretermitted heir who wishes to contest a will admitted to probate in an attempt to receive their intestate share of an estate must meet the elements of 58 O.S. §67, which affects those who wish to contest the admission of a will and provides the following:
If no person, within three (3) months after the admission to probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a period of one (1) year after their respective disabilities are removed. [8]
If a pretermitted heir seeks to challenge a final decree and was not a party to the proceedings, they must meet the elements of 58 O.S. §723, providing:
A person interested in the estate or funds affected by the decree or order, who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard therein, upon his application, or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired, may move to reopen the judgment within thirty (30) days from the date of the decree or order. The facts which entitle such person to vacate the judgment must be shown by an affidavit which must be filed with the motion to vacate. [9]
Title 12 O.S. §1031 provides for civil judgments to be corrected within 30 days after they have been entered, which would affect a pretermitted heir who intervenes or seeks to, in some way, make a claim in the probate.[10] If a claim is made outside of the confines of these statutes, it is unlikely that a pretermitted heir will find success in pursuing a decree that has already been entered as the time limitations set out by these statutes will have already passed, barring any action.
FACT-SPECIFIC SITUATIONS
Adopted children are treated no differently than biological children when considering the matter of pretermitted heirs. Oklahoma law holds that adopted children count as valid descendants for the purposes of inheritance, and as a result, adopted children are granted the same rights under §132 as biological children are.[11] Even when a parent has terminated all their parental rights to an adopted child, that child is still a valid beneficiary or devisee.[12] The termination of parental rights does not terminate the adopted child’s rights to an inheritance if not omitted as, “the termination of parental rights negates the parent's rights to inherit from the child … termination shall not ‘in any way affect the right of the child to inherit from the parent.’"[13]
Children born out of wedlock present another situation for consideration. Biological children born out of wedlock are generally treated the same as biological children born into wedlock, with an exception regarding the father of the child. Only when the father in some way acknowledges the child to be his own – by marrying the mother, receiving a court decree declaring he is the father or signing a document stating he is the father – is the child a valid heir.[14]
Another situation involves pretermitted children known about by courts or executors. Not only do pretermitted heirs have a right to an intestate share of an estate, but should a court and/or the executor of an estate know about the heir, courts and executors of estates are obligated to protect the interests of the pretermitted heir. Executors must alert courts to the existence of a pretermitted heir, and courts must protect the interest of this pretermitted heir by distributing their “statutorily entitled share” to them.[15]
A logical question arises if the testator has given the entire estate to a named beneficiary. Is such a gift sufficient evidence of the testator’s intent to disinherit all others? Oklahoma courts have said no, there must be further evidence of the testator’s intent to omit.[16] The default position, both in statute and the case law, appears to be that any child left out of a will is a pretermitted heir. The only way in which this is affirmatively contradicted is the presence of an intentional omission by the testator.[17] This can be in the form of expressly leaving nothing to an individual or leaving them a nominal amount, but it must be intentional and in the “four corners” of the will. This “four corners” doctrine disallows even clear parol evidence that would indicate the intent of a grantor, unless there are ambiguities on the face of the will created either by text or external facts.[18] In Crump v. Freeman, the court ignored the testatorial disposition of the entire estate. The will did not grant shares of the estate to certain heirs.[19] This is because if a legal heir is not expressly omitted, they are considered unintentionally omitted, and if a legal heir is unintentionally omitted, then they are considered pretermitted.[20]
With the rise of commercial DNA testing through companies such as 23andMe and Ancestry, practitioners have speculated that these relatively novel tests could have an impact on probate law in the discovery of pretermitted heirs. The Oklahoma Supreme Court held otherwise. The use of commercial DNA testing has become a method of discovering ancestors, relatives and descendants, and courts have held that it is just that, another tool for discovering pedigree. This has been made abundantly clear in a recent Oklahoma Supreme Court case, Felts v. Massey, in which James Felt, the appellant in the case, discovered himself to be the progeny of Basil Georges, the decedent in this case. The decedent had been dead for 15 years, his will already admitted to probate and a final decree already entered. The appellant discovered his connection to the decedent by complete accident when the results of a commercially available DNA test revealed that both he and someone known to be a child of the decedent shared the same father.[21] Based on the DNA results, the appellant petitioned to be declared a pretermitted heir in order to receive an intestate share of the estate.[22] However, the court ruled that the decedent’s will was conclusive. Fifteen years after the decedent’s death was far beyond the statute of limitations set out by 58 O.S. §67, and there was no recourse for the appellant, enforcing §67 no matter the methods used to discover paternity.[23]
CONCLUSION
The pretermitted heir issue has been present since the inception of wills. Oklahoma adopted the applicable statutes from 1910. The starting point is determined if the will from its four corners can be said to omit the heir. The issue of how the heir was discovered is not controlling. Once the probate court has determined heirs and entered the final decree, the statute of limitations of 30 days will control whether a claim can be heard.[24]
The pretermitted heir can exist in a variety of forms, from adopted children to those born out of wedlock. As with most subjects of law, the subject of pretermitted heirs has had to grapple with changing technology and how people learn information. The courts in this instance have made one thing abundantly clear, however. No matter what the method, medium or basis of a claim made by a pretermitted heir, if it does not meet the statute of limitations, it is barred. The omission must be intentional and determined from the will.
ABOUT THE AUTHOR
Hal WM. Ellis practices at the law firm of Ellis & Ellis in the areas of business organizations, tax-exempt organizations, trusts, estates, probate and tax planning. He received his BBA with a concentration in accounting and MBA degrees from the University of Central Oklahoma and J.D. from the OU College of Law. He is a member of the Payne County Bar Association and the OBA, an American Bar Foundation Fellow and a Fellow of the American College of Trust and Estate Counsel.
ENDNOTES
[1] The author thanks Andy Frels, a second-year law student at the TU College of Law, for his assistance in research, editing and analysis related to this article.
[2] “Pretermitted Heir,” Black’s Law Dictionary (6th ed., 1990).
[3] R. Robert Huff, Oklahoma Probate Law and Practice with Forms, 84-87 (3d ed., 1995); Okla. Stat. Ann. tit. 84, §132 (West, 2013).
[4] Welch v. Crow, 2009 OK 20, 206 P.3d 599; Benjamin v. Butler (In re: Estate of Jackson), 2008 OK 83, 194 P.3d 1269.
[5] Okla. Stat. Ann. tit. 84, §132 (West, 2013); Okla. Stat. Ann. tit. 84, §131 (West, 2013).
[6] Okla. Stat. Ann. tit. 84, §151 (West, 2013); Dunnett v. First Nat'l Bank & Tr. Co., 1938 OK 608, 184 Okla. 82, 85 P.2d 281.
[7] Okla. Stat. Ann. tit. 84, §132 (West, 2013).
[8] Okla. Stat. Ann. tit. 58, §67 (West, 2013).
[9] Okla. Stat. Ann. tit. 58, §723 (West, 2013).
[10] Okla. Stat. tit. 12, §1031 (West, 2013).
[11] Okla. Stat. Ann. tit. 10, §7505-6.5 (West, 2013).
[12] Id.
[13] Hooper v. Clinkingbeard (In re: Estate of Flowers), 1993 OK 19, 848 P.2d 1146.
[14] Okla. Stat. Ann. tit. 84, §215 (West, 2013).
[15] Mark v. Dorn (In re: Dorn), 1989 OK CIV APP 49, 787 P.2d 1291.
[16] Crump v. Freeman (In re: Estate of Crump), 1980 OK 80, 614 P.2d 1096.
[17] Id.
[18] Hooper v. Clinkingbeard (In re: Estate of Flowers), 1993 OK 19, 848 P.2d 1146; Crump v. Freeman (In re Estate of Crump), 1980 OK 80, 614 P.2d 1096; Okla. Stat. Ann. tit. 84, §132 (West, 2013).
[19] Crump v. Freeman (In re: Estate of Crump), 1980 OK 80, 614 P.2d 1096.
[20] Id.
[21] Felts v. Massey (In re: Estate of Georges), 2023 OK 123.
[22] Id.
[23] Id.
[24] Id.
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.