Pretermitted Child

Ozuna v. Wells Fargo Bank, N.A., 123 S.W.3d 429 (Tex. App.—San Antonio 2003, no pet.).


Testator executed a will naming Ozuna as a beneficiary. Later, Testator adopted Ozuna. Testator died without changing his will. Ozuna claimed that she was Testator’s pretermitted child under Probate Code § 67 and hence entitled to a larger share of the estate than the legacy Testator provided in his will.

The appellate court agreed with the trial court’s determination that Ozuna was not entitled to share in Testator’s estate as a pretermitted child. Although Ozuna was a pretermitted child because she was adopted after Testator executed her will, the statute did not provide her with a forced share because Ozuna was expressly provided for in Testator’s will. The appellate court rejected Ozuna’s argument that she was nonetheless entitled to take as a pretermitted child because she was not provided for in the will “as a child” but merely as a non-child.

Moral: A testator should expressly state how a pretermitted child is to be handled. For example, a testator in the process of raising a family may wish to expressly include pretermitted children while a philandering testator may prefer to expressly exclude pretermitted children.