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Abstract

Generally, pretermitted heir statutes protect a child, and under some statutes a more remote descendant of the testator from unintentional disinheritance. Their purpose is to carry out the presumed intent of the decedent to provide for a child inadvertently omitted from the will. Because revocable trusts are regularly used as substitutes for wills, primarily to avoid probate administration, presumptions regarding the intent of a decedent that are applicable to wills should also be applicable to revocable trusts. Additionally, many other problems that arise when disposing of a testator’s property at death may also arise with a settlor’s use of a revocable trust, and there is a recent trend toward resolving these problems by looking to the law of wills. Consequently, in Ohio, several statutory rules that apply to wills have been extended to apply to revocable trusts.

The Ohio General Assembly should similarly amend the pretermitted heir statute to allow an afterborn child to receive a share of their deceased parent’s property, regardless of whether the child was inadvertently omitted from a will or revocable trust instrument. Although, in general, state legislatures have been slow to respond to the increase in the use of revocable trusts as will substitutes, persuasive authority supports the extension of this rule to revocable trusts. Moreover, the Ohio legislature has responded to similar issues that arise in relation to revocable trusts on a case-by-case basis and should do so here. By amending the statute, a decedent’s presumed intent will be given effect regardless of whether the decedent chooses to use a will, a revocable trust, or both, to dispose of his property at his death.

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