What the rule says
Texas protects children who are born or adopted after a parent executes a will. Under Texas Estates Code §§ 255.051–255.053, a "pretermitted child" — a biological or adopted child of the testator born or adopted after the will was signed — is entitled to a share of the estate if the will does not provide for them.
The rule recognizes a common reality: a will signed before a child is born often does not anticipate that child. Texas treats the omission as an oversight and gives the child a statutory share rather than allowing the will to silently disinherit them.
The size of the pretermitted child's share depends on what other children are mentioned in the will:
- If the will makes no provision for any of the testator's other children, the pretermitted child takes the share they would have received if the parent had died intestate (without a will). - If the will makes provisions for other children, the pretermitted child takes a share of the property given to the other children, allocated proportionally so that the pretermitted child receives the same treatment.
What this means in practice
The rule operates as a default protection, not a complete fix. It applies only when the will is silent on the pretermitted child. If the testator named the child in the will (even briefly), provided for them, or expressly disinherited them, the statute does not apply.
Three important limits:
- The protection extends only to biological and legally adopted children. Stepchildren who were never adopted by the testator are not pretermitted children under Texas law, even if they were born or joined the family after the will was signed. - The protection does not apply if the will discloses that the omission was intentional. Language in the will indicating that the testator deliberately did not provide for after-born children is enforceable. - The protection does not apply if the testator provided for the child outside the will. Lifetime gifts, beneficiary designations on insurance or retirement accounts, or transfers in trust can satisfy the "otherwise provided for" exception.
Texas also has a related rule for after-born children whose existence the testator was unaware of when executing the will — those children are also entitled to an intestate share. The two rules together cover both expected and unexpected after-born children.
What you can do about it
The simplest fix is to update the will after the birth or adoption of a child. A new will, or a codicil, that names the child and provides for them (or expressly disinherits them, with a clear reason) eliminates any pretermitted-child question.
If updating the will is impractical immediately, several alternatives can satisfy the "otherwise provided for" exception:
- Beneficiary designations on life insurance, IRAs, 401(k)s, or other non-probate accounts that name the child as a beneficiary - A trust established for the child's benefit with assets transferred during life - Custodial accounts under the Texas Uniform Transfers to Minors Act
None of these is a complete substitute for an updated will, because they may not match what the testator would have wanted in proportion or timing. They do, however, prevent the after-born child from being categorized as pretermitted under the statute.
Who this affects most
This rule is most relevant for:
- Texas parents who executed a will before having children - Texas families where a child was born or adopted after a previously executed will - Estates where the will is significantly older than the youngest child - Households considering adoption who have not updated estate planning documents in anticipation
Texas 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.