The unexpected grandchild and your will

I grew up in the '70s. Back then, young people tended to sow their wild oats fairly indiscriminately. Sometimes, one of those wild oats sprouted.

Those of you with grayer hair than mine, or at least with a good historical perspective, might point out that this sort of thing has been going on since... well, probably since the dawn of time. Even the Old Testament is complete with such stories (think Bathsheba). "Les Miserables" is based on such a sad tale. But back then, before the sexual revolution, the usual response was for the young lady to marry quickly, preferably to the birth father but if not, to some other willing gentleman. At least one of our presidents was born of such a union. Nowadays, as often as not, she will simply raise the child herself, with the help of child support or public assistance. As often as not, this is done without any formal legal determination of paternity.

In estate matters, this can lead to some interesting circumstances, as shown by a recent Alaska Supreme Court decision. In Estate of Seward, a gentleman died, leaving a will which stated that he had no children. But after he died, a man came forward and claimed to be his son. There had never been a paternity determination, but DNA testing showed that he was, in fact, the biological offspring of the deceased.

Now here's the problem: the gentleman signed a will which very clearly left his estate to other people. Did his newly-discovered son have any rights? The court found that he did, but those rights were very limited.

Had this young man been born after the will was signed, he would likely have been entitled to the entire estate. Alaska, like most states, has a "pretermitted child" statute, which says that if someone leaves a will, and then later has a child who is not covered by the terms of the will, the child has the right to a portion of the estate. However in the Seward case, the justices pointed out that the statute only applies if the child was born after the will was signed. In this case the child was born well before the decedent signed his will, so the statute did not apply. As a result, all the young man was entitled to was a modest $10,000 exempt property allowance.

But change the facts a little bit, and the young man could have received the entire estate. If the will had been signed before he was born, he would have been a pretermitted child and entitled to the whole thing. Or if there had been no will at all, and the gentleman had died, perhaps assuming that the estate would go to his "next of kin" (which in this case would have been his siblings), the statutes would have instead given it to his newly-discovered son.

And here is another possibility: let us imagine that the gentleman had another child, and wanted to leave his entire estate to her. He leaves a will which says that his entire estate goes to his "then-surviving issue" or just to "his child". Now this newly-discovered son would be able to inherit half of the estate, the daughter getting the other half. On the other hand if the gentleman had left his estate to his daughter by name, the son would not have gotten anything.

Most people would look at the facts of this case and say "C'mon. The birth mother testified that she told him that he had a son. He should have expected that and addressed it in the will, one way or the other". Perhaps. But what about his parents? Let us imagine that his parents had died, leaving a will or trust, but their son died just before they did. And now, in the middle of estate proceedings, this unexpected grandchild shows up. I have had several cases in which that is exactly what happened. In that situation, the exact wording of the will or trust is going to be critical.

So what should you do if you have a son who might, in his youth, have enjoyed the charms of the young ladies? The answer is, it depends on your viewpoint. Some people, in that circumstance, would say "this grandchild is my blood, and should get a fair share". Others would say "I don't even know this grandchild, why would I want to include him in my estate". You can draft around it either way.

Roseann Barr, back when she was a standup comedienne, used to start her act with the line "I have two children... that I know of". The line worked because a woman would obviously know if she had a child. A man might or might not know, depending on his past conduct. But the parents of the man probably have no idea whether they might have an unexpected grandchild out there somewhere. You can plan it either way, but you should at least take that possibility into account.

Kenneth Kirk is an estate planning attorney in Anchorage. You can follow him on Twitter @KennethKirkPC. This article should not be taken as legal advice in any specific situation; for legal advice, you should consult an attorney directly.