3B:5-16.
a. Except as provided in subsection b., if a testator fails to provide in his
will for any of his children born or adopted after the execution of his will,
the omitted after-born or after-adopted child receives a share in the estate as
follows;
(1)If
the testator had no child living when he executed the will, an omitted
after-born or after-adopted child receives a share in the estate equal in value
to that which the child would have received had the testator died intestate,
unless the will devised all or substantially all of the estate to the other
parent of the omitted child or to a trust primarily for the benefit of that
other parent and that other parent survives the testator and is entitled to
take under the will.
(2)If
the testator had one or more children living when he executed the will, and the
will devised property or an interest in property to one or more of the
then-living children, an omitted after-born or after-adopted child is entitled
to share in the testators estate as follows:
(a)the
portion of the testators estate in which the omitted after-born or
after-adopted child is entitled to share is limited to devises made to the
testators then-living children under the will.
(b)the
omitted after-born or after-adopted child is entitled to receive the share of
the testators estate, as limited in subparagraph (a), that the child would have
received had the testator included all omitted after-born and after-adopted
children with the children to whom devises were made under the will and had
given an equal share of the estate to each child.
(c)to
the extent feasible, the interest granted an omitted after-born or
after-adopted child under this section must be of the same character, whether
equitable or legal, present or future, as that devised to the testators
then-living children under the will.
(d)in
satisfying a share provided by this paragraph, devises to the testators
children who were living when the will was executed abate ratably. In abating
the devises of the then-living children, the court shall preserve to the
maximum extent possible the character of the testamentary plan adopted by the
testator.
b.Neither
subsection a. (1) nor subsection a. (2) applies if:
(1)it
appears from the will that the omission was intentional; or
(2)the
testator provided for the omitted after-born or after-adopted child by transfer
outside the will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testators statements or is reasonably inferred from
the amount of the transfer or other evidence.
c.If
at the time of execution of the will the testator fails to provide in his will
for a living child solely because he believes the child to be dead, the child
is entitled to a share in the estate as if the child were an omitted after-born
or after-adopted child.
d.The
share provided by subsection a. (1) shall be taken from devisees under the will
ratably and in proportion to their respective interests therein.
Amended
2004, c.132, s.57.
For
more information, go to http://njwillsprobatelaw.com/3b_5-16.html?id=2202&a=
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