474.240. Share of omitted children, how determined. — 1. 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 child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
2. 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 receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his.
4. In satisfying a share provided in this section, the devises made by the will abate as provided in section 473.620.
Notes of Decisions
Cited in
7
cases, 1974–2011 · leading case:
Wilkinson v. Brune, 682 S.W.2d 107 (Mo. Ct. App. 1984).
Wilkinson v. Brune, 682 S.W.2d 107 (Mo. Ct. App. 1984).
· cites it 5× “Section 474.240 RSMo. Supp.1983. This statute was originally enacted in 1955 (then entitled “Pretermitted children”) and was based on the Model Probate Code, as was the election statute.”
Helmer v. Voss, 646 S.W.2d 738 (Mo. 1983).
· cites it 6× “Item VI operated to disinherit Cecile’s son Lee James Konz, who would take her entire estate if she were to survive and were to die intestate, and who would have a possible statutory claim under § 474.240, RSMo, if not mentioned in her will.”
Moyer v. Walker, 771 S.W.2d 363 (Mo. Ct. App. 1989).
“The third point claims that because plaintiff was “bom” after the execution of the will, he is an omitted child under § 474.240 and is entitled to inherit a child’s share under intestacy laws.”
Vogel ex rel. Vogel v. Mercantile Trust Co., 511 S.W.2d 784 (Mo. 1974).
· cites it 2× “It was substantially amended in 1955 and now appears as § 474.240, RSMo 1969, V.A.M.S. We are not concerned with the amendment.”
Brewer v. Brewer, 168 S.W.3d 135 (Mo. Ct. App. 2005).
· cites it 11× “While Oliver left a will disposing of his estate, the will was executed prior to Amberetta’s birth, and she claims a share of the estate as an omitted child pursuant to Section 474.240, RSMo. The trial court found that Amber-etta was not entitled to recover under that statute…”
In re Gilmore, 87 A.D.3d 145 (N.Y. App. Div. 2011).
“…Code § 43-8-91; Conn Gen Stat § 45a-257b [c]; Idaho Code Ann § 15-2-302 [b]; Me Rev Stat Ann tit 18-A, § 2-302 [b]; Mo Rev Stat § 474.240 [2]; Neb Rev Stat § 30-2321 [b]; NJ Stat Ann § 3B:5-16 [c]; SC Code Ann § 62-2-302), including California (see Cal Probate Code § 21622),…”
Mo. Rev. Stat. § 474.240(1): 1 case
Helmer v. Voss, 646 S.W.2d 738 (Mo. 1983).
“Item VI operated to disinherit Cecile’s son Lee James Konz, who would take her entire estate if she were to survive and were to die intestate, and who would have a possible statutory claim under § 474.240, RSMo, if not mentioned in her will.”
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