N.Y. Estates, Powers & Trusts Law § 5-3.2: Revocatory effect of birth of child after execution of will

§ 5-3.2 Revocatory effect of birth of child after execution of will

(a) Whenever a testator has a child born after the execution of a last

will, and dies leaving the after-born child unprovided for by any

settlement, and neither provided for nor in any way mentioned in the

will, every such child shall succeed to a portion of the testator's

estate as herein provided:

(1) If the testator has one or more children living when he executes

his last will, and:

(A) No provision is made therein for any such child, an after-born

child is not entitled to share in the testator's estate.

(B) Provision is made therein for one or more of such children, an

after-born child is entitled to share in the testator's estate, as

follows:

(i) The portion of the testator's estate in which the after-born child

may share is limited to the disposition made to children under the will.

(ii) The after-born child shall receive such share of the testator's

estate, as limited in subclause (i), as he would have received had the

testator included all after-born children with the children upon whom

benefits were conferred under the will, and given an equal share of the

estate to each such child.

(iii) If it appears from the will that the intention of the testator

was to make a limited provision which specifically applied only to the

testator's children living at the time the will was executed, the

after-born child succeeds to the portion of such testator's estate as

would have passed to such child had the testator died intestate.

(iv) To the extent that it is feasible, the interest of the after-born

child in the testator's estate shall be of the same character, whether

an equitable or legal life estate or in fee, as the interest which the

testator conferred upon his children under the will.

(2) If the testator has no child living when he executes his last

will, the after-born child succeeds to the portion of such testator's

estate as would have passed to such child had the testator died

intestate.

(b) The term "after-born child" shall mean a child of the testator

born during the testator's lifetime or in gestation at the time of the

testator's death and born thereafter. For purposes of this section, a

non-marital child, born after the execution of a last will shall be

considered an after-born child of his or her father where paternity is

established pursuant to section 4-1.2 of this chapter.

(c) The after-born child may recover the share of the testator's

estate to which such child is entitled, either from the other children

under subparagraph (a) (1) (B) or the testamentary beneficiaries under

subparagraph (a) (2), ratably, out of the portions of such estate

passing to such persons under the will. In abating the interests of such

beneficiaries, the character of the testamentary plan adopted by the

testator shall be preserved to the maximum extent possible.