130.555 Children of settlors; pretermitted children
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130.555 Children of settlors; pretermitted children.
(1)As used in this section, “pretermitted child” means a child of a settlor who, after the execution of the trust instrument, is born or adopted during the lifetime of the settlor or is in gestation at the time of the settlor’s death, who is not acknowledged or mentioned, either by name or by class, in the trust instrument or in the settlor’s will, and who survives the settlor.
(2)If a settlor has one or more children living when the settlor executes a trust instrument and no provision is made in the trust for any of those children, a pretermitted child is not entitled to any share of the trust estate.
(3)If a settlor has one or more children living when the settlor executes a trust instrument and provision is made in the trust for any of those children, a pretermitted child is entitled to share in the trust estate as follows:
(a)The pretermitted child may share only in the portion of the trust estate intended to benefit living children.
(b)The share of each pretermitted child is equal to the total value of the portion of the trust estate intended to benefit the living children divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the trust.
(c)To the extent possible, the interest of each pretermitted child in the trust estate shall be of the same character, whether equitable or legal, as the interest the settlor gave to the living children under the trust.
(4)If a settlor has no child living when the settlor executes a trust instrument, the pretermitted children are entitled to the following share of the trust estate:
(a)If the settlor dies leaving a surviving spouse and all pretermitted children are the issue of the surviving spouse, the pretermitted children are not entitled to any share of the trust estate.
(b)If the settlor dies leaving a surviving spouse and not all pretermitted children are the issue of the surviving spouse, the pretermitted children, as a class, are entitled to one-half of the trust estate, with shares of the trust to be divided equally.
(c)If the settlor dies without leaving a surviving spouse, the pretermitted children are entitled to the entire trust estate, with shares of the trust to be divided equally.
(5)A pretermitted child may recover the share of the trust estate to which the child is entitled as follows:
(a)If the pretermitted child is entitled to a share of the trust estate under subsection
(3)of this section, the share must be recovered from the other children.
(b)If the pretermitted child is entitled to a share of the trust estate under subsection
(4)of this section, the share must be recovered from the beneficiaries on a pro rata basis, out of the portions of the trust estate passing to those persons under the trust.
(c)In reducing the shares of the beneficiaries under this subsection, the character of the dispositive plan adopted by the settlor in the trust must be preserved to the extent possible. [Formerly 128.388; 2013 c.529 §11]