What the rule says
New York protects children who are born to or adopted by a testator after the testator's will is executed. Under New York Estates, Powers and Trusts Law § 5-3.2, an after-born child who is not provided for in the will is entitled to a share of the estate. The size of the share depends on whether the testator made provisions for other children in the will.
The rule operates as follows:
- If the will makes no provision for any of the testator's other children: The after-born child takes a share equal to what they would have received if the testator had died intestate. - If the will makes provisions for one or more children: The after-born child shares ratably with the other provided-for children. The total amount allocated to children is redistributed proportionally so that the after-born child receives a share equal to that of the children who were provided for. - If the will provided for some but not all children, and the after-born child is not provided for: The after-born child takes the share they would have received under intestacy, drawn from the residue and from gifts to the provided-for children proportionally.
The statute also addresses children adopted after will execution: an after-adopted child is treated the same as an after-born biological child for purposes of EPTL § 5-3.2.
The exceptions
The protection does not apply when:
1. It appears from the will that the omission was intentional. Express language indicating that the testator did not intend to provide for after-born or after-adopted children satisfies this exception. 2. The testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the after-born child. As in Florida, New York presumes that leaving substantially all of the estate to the surviving parent of the after-born child indirectly provides for that child. The exception fails if the surviving parent does not actually survive the testator. 3. The testator provided for the child by transfer outside the will. A trust, life insurance designation, or other settlement that provides for the after-born child can satisfy this exception if it appears from the testator's statements or other evidence that the transfer was intended in lieu of a testamentary provision.
What this means in practice
The rule operates as a default protection that activates when a will written before a child's birth fails to address that child. New York treats the omission as presumptively unintentional and corrects it through a statutory share.
A few practical points:
- The protection is limited to biological and legally adopted children. Stepchildren who were not adopted by the testator are not after-born children under EPTL § 5-3.2, even if they joined the family after the will was signed. - The protection applies only to children born or adopted after the will's execution. A child existing at the time of execution but simply not mentioned in the will is not protected by this rule (though other doctrines may apply). - Litigation can arise over whether the second exception applies. When a will leaves substantially all of the estate to the other parent and the other parent survives, the after-born child's claim is typically barred. Disputes often turn on whether "substantially all" is met when partial gifts are made to others.
What you can do about it
Updating the will after the birth or adoption of a child is the most reliable fix. A new will or codicil that names the child and either provides for them or expressly disinherits them eliminates ambiguity and forecloses an after-born claim.
If updating the will is impractical immediately:
- Beneficiary designations on life insurance, IRAs, 401(k)s, and other non-probate accounts naming the child help ensure the child is provided for and may satisfy the third exception. - A trust established for the child's benefit with a meaningful corpus can also satisfy the third exception. - A custodial account under New York's Uniform Transfers to Minors Act can hold assets for the child during minority.
These alternatives may not eliminate the after-born analysis but can establish that the testator provided for the child outside the will.
Who this affects most
This rule is most relevant for:
- New York parents who executed a will before having children - New York families where a child was born or adopted after a previously executed will - Estates where the will is significantly older than the youngest child - Adoptive families who completed adoption after a previously executed will
New York does not require parents to update their will every time the family expands. It does provide a default protection so that an unupdated will does not unintentionally disinherit a child. Updating the will after a major family change replaces the default with the parent's actual choice.