Leslie signed her Will five years ago when she had one child. Last year, she had twins. Does her old Will still work—or does it need to be updated? In this episode, Jill answers Leslie’s question and dives into the legal concept of “pretermitted children.” Jill looks at how different states handle this issue and unpacks what happened in the high-profile estates of Heath Ledger and Anna Nicole Smith when their Wills didn’t account for new children.
What You’ll Learn in This Episode
When a Will may still work with more children. Some Wills are drafted with language that automatically includes “any child born or adopted after the date of this Will.” If that’s the case, you may not need to update your documents every time your family grows.
What “pretermitted children” are and why it matters. Most states have laws that protect children born after a Will is signed so they aren’t unintentionally disinherited. These laws can dramatically change how an estate is divided.
How Tennessee law handles afterborn children. In Tennessee, a pretermitted child can claim a share of the estate as though the parent had died intestate, without a Will, potentially reducing what other beneficaries receive.
How the same Will can have totally different outcomes in different states. Using Leslie’s example, her twins could inherit a share under Tennessee law, but in New York they might get nothing. State law really does matter.
Celebrity cautionary tales
The DNA twist. A 2023 Oklahoma case shows how modern DNA testing can lead to surprise inheritance claims from unknown (or unacknowledged) children.
When you should update your Will
Even if your Will includes future children, you’ll need an update if:
Resources & Links
Connect with Jill:
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The Death Readiness Podcast
Episode: 35
Title: Why Your Old Will Might Leave Out Your New Baby
Host: Jill Mastroianni (Solo)
Published: September 30, 2025
Jill Mastroianni (00:00):
Leslie signed her Will five years ago when she had one child. Last year, she had twins. Does her Will still work—or does she need to change it? Today, I’m answering Leslie’s question and exploring how ignoring this step played out in the very public estates of Heath Ledger and Anna Nicole Smith.
Welcome to the Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni, former estate attorney, current realist, and your guide to wills, trusts, probate and the conversations no one wants to have. If your Google search history includes, “Do I need a trust?” “What exactly is probate?” and “Am I supposed to do something with mom’s Will?” you’re in the right place.
(00:52) I started my legal career at a small Nashville law firm, and one of the first lessons drilled into me was this: every estate plan should start from a solid form. A form isn’t the finished product, but it’s the foundation. You start with language you know works, and then you build on it—tailoring it to fit the client sitting in front of you.
That summer, while I was still in law school, my biggest job was to update all of the firm’s Will forms. Not glamorous, but incredibly important. Because at a law firm, the form is the product.
And here’s the larger point-- attorneys sometimes cut corners. They’ll take the last Will they drafted for another client and tweak it for the next one. That’s very risky.
At the last firm I practiced with, I managed more than 800 different forms for different situations. Using good forms not only saves clients money, it ensures you’re delivering a consistently strong product, not a hand-me-down personalized for someone else.
(01:53) Now let’s tie this back to Leslie’s question. She signed her Will five years ago when she had one child, and now she has three. Does her Will still work?
When I was practicing law, this question came up all the time. Clients would call to ask, “We just had another baby—do we need to redo our Will?” And if I had drafted their Will, the answer was usually no.
The reason is that the forms I used anticipated the future. In my own Will, for example, I don’t just list my two kids by name—I also include language that covers “any child born or adopted after the date of this Will.” That way, if I had another child tomorrow, that child would automatically be included.
The Will also lays out how everything is distributed: if my spouse survives me, everything goes to him. If not, my probate estate is split into equal shares—one for each child. And then those shares are held in separate trusts for the benefit of each child.
(02:57) So because of the way “children” is defined in my Will to include future children, I don’t have to rewrite the Will if my family grows.
But, there are exceptions. For example, if the new child has special needs, you’d want to update the Will to create a specific trust for that child’s unique circumstances.
Now, I haven’t seen Leslie’s actual Will, and I don’t know her specific circumstances, so I can’t say for sure what she should do. But she’s absolutely right to ask the question—because in some cases, adding children does mean you need to update your Will.
Here’s why. The legal term for a child who was born after a decedent signed their Will and is not accounted for in the Will is a “pretermitted child.” I’ll say that again: pretermitted child. Most states have laws about this. They basically assume that if you had another child after writing your Will, and that child isn’t accounted for, you didn’t mean to leave them out.
(04:00) In the U.S., children don’t have a right to inherit from their parents. But in most states they do have a right not to be accidentally disinherited. So, in many states, a pretermitted child can claim a share of the estate as if their parent had died without a Will at all.
As a reminder, dying without a Will is referred to as dying intestate.
Since Leslie is from Tennessee, let’s walk through how this plays out under Tennessee law.
If Leslie were married and died without a Will, Tennessee’s intestacy law would kick in. Her spouse would get one-third of her probate assets, and the other two-thirds would be split among her three children. That works out to about 22% for each child.
Remember, when I say “probate assets,” I mean assets in your own name that don’t already have a beneficiary or payable-on-death designation. I’ll link in the show notes to my “Do you need a Will?” video if you’d like a deeper dive into probate versus non-probate assets.
(05:06) But Leslie does have a Will. She signed it when she only had one child. If her Will didn’t specifically account for future children or didn’t explicitly disinherit them, then her twins would be considered pretermitted children under Tennessee law.
Here’s where it gets tricky: the law says Leslie’s twins are each entitled to the same 22% they would have received if Leslie had died without a Will.
That means the people named in her Will have to take less so the twins get their shares.
Let’s use an example. Say Leslie’s Will left everything to her spouse. Under Tennessee’s pretermitted child law, the spouse’s share would drop from 100% to about 56%, and each of the twins would take 22%.
(06:00) But notice what happened: the child Leslie already had when she signed her Will gets nothing. Why? Because that child is not a pretermitted child. Leslie’s first child existed when the Will was written, so the law assumes Leslie made her decision to exclude that child on purpose.
If Leslie’s question has you wondering whether your estate plan still works, let’s fix that.
I offer a Verbal Estate Plan Audit over Zoom—a practical, personalized review of what you already have in place. In just one focused hour, you’ll walk away with:
It’s perfect if you signed a Will years ago and can’t remember what it says, or if you’ve suddenly found yourself managing your parents’ trust and aren’t sure where to start.
Visit deathreadiness.com/services to learn more. The link is in the show notes.
(07:06) Now, let’s bring the concept of the pretermitted child to life with a couple of celebrity examples.
Heath Ledger, who you probably remember from Brokeback Mountain and as the joker in Batman, died tragically in 2008 at just 28 years of age. He actually had a Will, signed back in 2003 in Australia, before his daughter Matilda was born in 2005.
That Will left everything in a trust for the benefit of Mr. Ledger’s parents and sisters. And, that Will did not include language for future children.
At the time of his death, Heath was living in New York. Under New York law, a child born after a parent signs a Will is entitled to a share unless the Will provides for or mentions future children. And if the parent isn’t married, like Mr. Ledger, that child would inherit the entire probate estate.
(08:04) If New York law had applied to Heath Ledger’s estate, and we don’t know that it would have, Matilda would have been entitled to his entire probate estate.
But here’s the unexpected plot twist: Mr. Ledger’s family didn’t fight over his estate. Reportedly, they all agreed that the assets should pass to Matilda.
Compare that with Leslie’s case. Under Tennessee law, her twins—the afterborn, or pretermitted children—would be entitled to about 44% of her probate estate, and the rest would still follow the terms of her Will. But if Leslie lived in New York? Her twins would get nothing.
Under New York law, because Leslie already had a living child when she signed her Will and didn’t provide for that child, she is presumed to not have intended to provide for her children born after she signed the Will either.
(09:02) So the takeaway is this: state law makes a huge difference. The exact same Will could dictate two completely different outcomes depending on where you live.
Now let’s talk about Anna Nicole Smith. Anna Nicole Smith rose to fame as a model, reality TV star, and pop culture personality. She died tragically at age 39 leaving behind her infant daughter, Dannielynn.
Anna Nicole Smith had a Will, and it included a clause you don’t often see in a female’s Will. It said: “I have intentionally omitted to provide for other heirs, including future children.”
That kind of language shows up more often in men’s Wills, usually out of concern that unknown children might come forward to claim an inheritance. My hunch is that Ms. Smith’s lawyer recycled the last Will they drafted for a male client instead of starting fresh with a clean form.
(10:00) Remember earlier when I said attorneys should never just pull up the last Will they worked on? This is exactly why.
Even though Ms. Smith’s Will explicitly disinherited any future children, the story didn’t end there. Her daughter, who was born after the Will was signed, still inherited her entire probate estate.
Why? Because the only person named under Anna Nicole Smith’s Will as a beneficiary—her son—had already died. Since Anna Nicole wasn’t married and had no surviving beneficiaries under the Will, her estate passed through intestacy, as though she did not have a Will.
And under intestacy law, her daughter took it all, despite being [quote] “disinherited” in the Will.
Have you ever wondered what effect commercial DNA test companies have on inheritance? And, how the pretermitted child statutes might apply to situations in which an individual discovers that their biological parent is not who they expected.
(11:07) Let’s look at a case in Oklahoma decided in December 2023.
James Felts filed a petition to reopen the probate estate of the deceased Mr. Georges on the theory that Mr. Felts was a pretermitted child.
James Felt’s mother married Clyde Felts in 1950 and gave birth to James in 1958. Clyde Felts was James’ presumed father.
Mr. Georges died in 1997. In 2018, Mr. Georges’ daughter took a commercially-available DNA test. The results indicated that she and Mr. Felts shared the same biological father, which was Mr. Georges, not Clyde Felts. Mr. Georges’ daughter contacted Mr. Felts to tell him about the test results.
(12:00) A couple of years later in 2020, Mr. Felts filed the petition to reopen Mr. Georges’ estate and recover part of the estate as a pretermitted child. Mr. Georges’ estate had been closed by the probate court 15 years earlier.
The court found that Mr. Felts was barred by the statute of limitations for contesting a Will. Basically, Mr. Felts was too late.
Let’s go back to the original question for today’s Tuesday Triage.
Leslie signed her Will five years ago when she had one child. Last year, she had twins. Does she need to update her Will?
If Leslie’s estate planning attorney was working from a solid form that included language accounting for future children AND the needs of Leslie’s twins do not require planning beyond that which is provided for children under Leslie’s existing Will, then, no, she likely does not need to update her Will.
(12:58) If Leslie’s existing Will does not account for future children or the needs of her twins require specialized planning, then, yes, she likely does need to update her Will.
If today’s episode has you wondering whether your estate plan still works, let’s fix that.
I offer a Verbal Estate Plan Audit over Zoom—a practical, personalized review of what you already have in place. In just one focused hour, you’ll walk away with:
It’s perfect if you signed a Will years ago and can’t remember what it says, or if you’ve suddenly found yourself managing your parents’ trust and aren’t sure where to start.
Visit deathreadiness.com/services to learn more. That’s deathreadiness.com/services. The link is in the show notes.
Thanks for listening to today’s Tuesday Triage.
(13:56) If you have a question you’d like me to answer on Tuesday Triage, submit it at deathreadiness.com/tuesdaytriage. That’s deathreadiness.com/tuesdaytriage. The link is in the show notes.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.