Arizona Laws 14-2302. Omitted children; shares; definition
A. Except as provided in subsection C of this section, if a testator fails to provide by will for a child who is born or adopted after the testator executes the will, the omitted child receives a share in the estate as follows:
Terms Used In Arizona Laws 14-2302
- Child: includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. See Arizona Laws 14-1201
- Court: means the superior court. See Arizona Laws 14-1201
- 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 Arizona Laws 14-1201
- 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 and excludes any person who is only a stepparent, foster parent or grandparent. See Arizona Laws 14-1201
- Property: includes both real and personal property. See Arizona Laws 1-215
- Testator: A male person who leaves a will at death.
- Testator: includes a person of either sex. See Arizona Laws 14-1201
1. If the testator had no child living when the testator executed the will, an omitted child receives a share in the estate equal in value to what the child would have received if the testator had 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.
2. If the testator had one or more children living when the testator executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted child is entitled to share in the testator’s estate as follows:
(a) The portion of the testator’s estate in which the omitted child is entitled to share is limited to devises made to the testator’s then-living children under the will.
(b) As limited under subdivision (a) of this paragraph, the omitted child is entitled to receive the share of the testator’s estate that the child would have received if the testator had included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.
B. To the extent feasible, the interest granted an omitted child under subsection A, paragraph 2 of 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.
C. In satisfying a share prescribed by subsection A, paragraph 2 of 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.
D. Subsection A of this section does not apply if either of the following is true:
1. It appears from the will that the omission was intentional.
2. The testator provided for the omitted 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 can be reasonably inferred from the amount of the transfer or other evidence.
E. If at the time the testator executed the will the testator fails to provide by will for a living child solely because the testator 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.
F. In satisfying a share provided by subsection A, paragraph 1 of this section, devises made by the will abate under section 14-3902.
G. For the purposes of this section, "omitted child" means a child who was born or adopted after the testator executed a will.