## Facts

- In 1981, John Merrill Gray II executed a will devising all of his estate to his then-wife, Mary Rose Gray.
- At the time of the will’s execution, John had two living children from a prior marriage, neither of whom was provided for in the will.
- In 1984, John and Mary had a son, John Merrill “Jack” Gray III.
- In 1989, John and Mary divorced; the divorce settlement required John to fund a trust for Jack with one-half of assets John received from his mother’s estate.
- John died in 2004 without revising the 1981 will.
- By statute, the divorce revoked Mary’s bequest under the will.
- Jack petitioned for an intestate share as an omitted (after-born) child under Alabama’s omitted-child statute; the probate court granted the petition.

## Issues

1. Whether an after-born child is entitled to an intestate share under Ala. Code § 43-8-91 when, at will execution, the testator had one or more children and devised substantially all of the estate to the after-born child’s other parent.
2. Whether the divorce-settlement trust constituted a transfer outside the will intended in lieu of a testamentary provision under Ala. Code § 43-8-91(a)(3).

## Decision

- The Alabama Supreme Court reversed the probate court and remanded.
- The court held Jack was not entitled to an intestate share under Ala. Code § 43-8-91 because the exception in § 43-8-91(a)(2) applied.
- The court concluded § 43-8-91(a)(2) is triggered when (i) the testator had one or more children when the will was executed and (ii) the will devised substantially all of the estate to the omitted child’s other parent.
- The court rejected the argument that § 43-8-91(a)(2) applies only when the testator’s existing children at will execution are also children of the omitted child’s other parent.
- Because § 43-8-91(a)(2) was dispositive, the court did not base its judgment on the trust/transfer question under § 43-8-91(a)(3).

## Legal Principles

- Under Ala. Code § 43-8-91, an after-born or after-adopted child generally takes an intestate-equivalent share unless a statutory exception applies.
- The exception in § 43-8-91(a)(2) applies if, when the will was executed, the testator had one or more children and devised substantially all of the estate to the other parent of the omitted child.
- Section 43-8-91(a)(2) turns on objective statutory conditions rather than proof of the testator’s subjective intent regarding the later-born child.
- “Other parent” in § 43-8-91(a)(2) is not limited to situations where the testator’s then-existing children were also children of that same other parent.

## Conclusion

The court held that an after-born child is not a pretermitted heir under Alabama’s omitted-child statute when the testator already had children at the time of executing the will and left substantially all of the estate to the person who later became the after-born child’s other parent, even if the testator’s earlier children were from a different relationship.


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