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New Hampshire Pretermitted Heir Statute Does Not Apply to Trusts

Under New Hampshire law, if a decedent’s child or issue (e.g. grandchild) is not named or referred to in the decedent’s Will and that child or issue is not a devisee or legatee under the Will (that is, they are not identified as a recipient of some part of the decedent’s estate), then that unnamed child or issue will be entitled to receive the portion of the decedent’s estate that he or she would have received if the decedent died without a Will.  Essentially, the pretermitted heir statute prevents a parent from inadvertently disinheriting a child or issue in his or her Will unless there is evidence in the Will that the omission was intentional.

In Re: Teresa E. Craig Living Trust, Ms. Craig died in 2016, survived by one son, Sebastian.  Her other son, Michael had died in 2007, leaving two children of his own.  Ms. Craig had executed a trust as part of her estate plan after Michael died, naming Sebastian and his issue as the beneficiaries of her trust.  There was no mention of Michael or his issue in the trust.  Michael’s children petitioned the court to determine that they were pretermitted heirs and as a result, would receive a portion of Ms. Craig’s trust.  Michael’s children asserted that under New Hampshire law applicable to trusts, the pretermitted heir statute should be interpreted as a rule of construction providing guidance relative to the interpretation of the trust that need not always apply, depending upon the circumstances.

The Court ruled that the pretermitted heir statute has been, and continues to be, a rule of law that is not applicable to trusts. While this case was pending in the lower courts, the New Hampshire legislature amended the trust law to clearly state that the pretermitted heir statute does not apply to any trust.  The Court’s ruling clarifies any uncertainty that existed before the legislative amendment.
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