Mississippi Pretermitted Child Laws: Protecting After-Born Children in Your Estate Plan

A pretermitted child is a child born or adopted after a parent's will was signed and who is not mentioned in the will. Mississippi law gives these children automatic inheritance rights that can override what the will says — a protection designed to prevent accidental disinheritance, but one that can disrupt carefully drafted estate plans if parents do not account for it.

How Mississippi Protects After-Born Children

Under Mississippi's pretermitted child statutes (Miss. Code Ann. § 91-5-5), if a child is born or legally adopted after the parent executes their will and the will does not provide for that child, the child is entitled to receive the share they would have inherited if the parent had died without a will (intestate).

For example, if a parent dies with a spouse and two children already named in the will, and a third child was born after the will was signed and is not mentioned, that third child can claim an equal share alongside the other heirs under the intestacy formula. In this case, the spouse and each child would each receive one-quarter of the estate.

This does not mean the child automatically gets the property — they must assert their claim in Chancery Court during probate. But the claim is strong and difficult to contest, because the statute presumes the omission was accidental.

When the Protection Does Not Apply

The pretermitted child statute does not apply in two situations:

Intentional omission. If the will explicitly states that the parent intentionally excludes future-born children, or includes language like "I have intentionally made no provision for any children born after this will," the statute is overridden. The exclusion must be clear and unambiguous.

Provision through other means. If the parent provided for the after-born child through other estate planning tools — a life insurance policy naming the child as beneficiary, a trust, or a Transfer-on-Death deed — the child may be barred from claiming an additional intestate share through probate.

Guardianship for Minor Children

If both parents die while children are minors (under 18 in Mississippi), the will's guardianship nomination guides the Chancery Court on who should raise the children. Without a nomination, the court decides — a process that can take months and may produce an outcome the parents would not have chosen.

Mississippi distinguishes between two types of guardianship:

Guardian of the person — who raises the child, makes educational decisions, and provides daily care.

Guardian of the property — who manages any assets the child inherits.

These can be the same person or different people. A common arrangement: a sibling raises the child (guardian of the person) while a financially responsible family member manages the inheritance (guardian of the property).

The Minor Guardianship Trap

If a child inherits assets without a testamentary trust, and the value exceeds a modest threshold, the Chancery Court requires a formal court-supervised guardianship of the property. This means the guardian must file annual accountings with the court, get court approval for expenditures, and potentially post a surety bond — all of which cost money and create administrative overhead.

The guardianship lasts until the child turns 21 under Mississippi's Uniform Transfers to Minors Act (UTMA). When the child reaches 21, they receive the full inheritance with no restrictions — regardless of their maturity or financial judgment.

The Fix: Testamentary Trust

Including a testamentary trust provision in your will solves both problems. A testamentary trust:

• Creates a trust upon your death that holds the child's inheritance
• Names a trustee of your choosing (not a court-appointed guardian)
• Lets the trustee distribute funds for the child's health, education, and support without court involvement
• Sets the age at which the child receives the remaining balance (you can set this at 25, 30, or any age — not the default 21)
• Avoids the expense and complexity of court-supervised guardianship

The testamentary trust is written directly into the will and costs nothing extra to include. It activates only if minor children inherit assets, so it has no impact during the parent's lifetime.

Update After Every Child

The simplest way to prevent pretermitted child claims: update your will after every birth or adoption. Include each child by name and specify their share, guardianship preferences, and any trust provisions.

The Mississippi Basic Estate Planning Kit includes will templates with testamentary trust clauses and guardianship nomination provisions, designed to protect both existing and future-born children under Mississippi law.

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