Gray v. Gray - 947 So. 2d 1045 (Ala. 2006)

Rule:

Ala. Code § 43-8-91(a)(2) states only two conditions for excluding an omitted child from an intestate share of the testator's estate: (1) the testator had one or more children at the time he executed his will, and (2) the testator's will devised substantially all of the testator's estate to the other parent of the omitted child. Because the statute is one of substance and is in derogation of the common law, courts must construe it strictly and not extend its reach beyond its terms.

Facts:

The son was born after the decedent executed the will in question, which devised all of his estate to his wife and did not include his two children from a previous marriage. The decedent did not change his will after he and his wife were divorced. The probate court found that the son was entitled to a distribution from the estate under the pretermitted child statute, Ala. Code § 43-8-91, equal in value to the share he would have received had the decedent died intestate. 

Issue:

Did the probate court err in finding that the son was entitled to a distribution from the estate under the pretermitted child statute, Ala. Code § 43-8-91, equal in value to the share he would have received had the decedent died intestate?

Answer:

Yes.

Conclusion:

The state supreme court found that one of the exceptions in the pretermitted child statute, Ala. Code § 43-8-91(a)(2), was that an omitted child was not entitled to a share of the estate if, when the will was executed, the testator had one or more children and devised substantially all of his estate to the other parent of the omitted child. The state supreme court found that in light of the fact that when the decedent executed his will, he had two other children, and his will devised all of his estate to the son's mother, the exception under Ala. Code § 43-8-91(a)(2) applied, and the son could not receive a share of the estate. Thus, the probate court's judgment was incorrect.