Providing for an Unborn Child in a Will

By Cindy DeRuyter, J.D.

Providing for an Unborn Child in a Will

By Cindy DeRuyter, J.D.

One of the most common reasons new parents create wills is to designate a guardian to care for their child if the parents die prematurely. However, you do not need to wait for your child's birth before creating your will. Your will can include your children on the date you create the will as well as children born to or legally adopted by you after you sign your will.

Pregnant woman talking to man at computer

Common Will Provisions

Wills serve many different functions, including appointing fiduciaries and documenting your wishes for the distribution of your assets.

If you have minor children or if you anticipate having minor children in the future, your will can nominate someone to serve as legal guardian. If you die prematurely and if your child's other parent is unable to serve as guardian, the guardian has physical custody of minor children until they turn 18.

Whether or not you have children, your will should nominate someone as your personal representative. The personal representative is responsible for settling your estate, handling administrative matters, and distributing assets according to your wishes.

Wills also generally identify how and to whom estate assets should pass. People with children may also create testamentary trusts inside their wills. When you create a testamentary trust, you appoint someone as trustee and provide terms that dictate how and when the trustee can distribute assets. For example, you can create trust provisions naming your current and future children as beneficiaries of your estate and naming a trusted family member or friend as the trustee. If you died prematurely, your trustee could distribute trust assets to care for your children's needs. You could designate that when your child reaches the age of 25 or 30, the trustee should distribute any remaining trust assets. This provides a measure of comfort for many parents, knowing they have protected their children's needs and interests if the worst happens.

Including Unborn Children

Wills typically identify children who are alive on the date of the will by their full, legal names and their dates of birth. You can provide for unborn children in your will by also including language to the effect of: "'My children' also specifically includes any children born to me or legally adopted by me after the date of this will."

You may wish to update your will after the birth of your child to add their name and birth date, but as long as your will includes after-born children, it is not critical for you to add them immediately after birth.

Creating a Will

You may decide to make your own will. Alternatively, you can hire an attorney licensed in your state to create your will. You can also work with an online service provider to make a will that includes both current and unborn children.

State laws govern wills, trusts, and other estate planning tools. Therefore, whatever route you choose, make sure your new will complies with your state's laws and that you meet state-specific requirements to make the will legal. These vary by state but may include witness signatures and a notary public's signature.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.