Should I Include My Unborn Child in My Estate Plan?

Should you put your future children in estate plan?

Estate planning is an exercise in anticipating potential future events that could affect your plans for what happens if you become incapacitated (unable to manage your own affairs during your lifetime) and how your assets (property and accounts) will be handled after your death. The more you plan for what life might throw at you, the less you leave to chance—and the more protected your legacy and loved ones will be.

However, is there such a thing as being too prepared?

For parents of minor children, too much planning is generally preferable to not enough. The same can be said for those who are expecting a child or planning to adopt. However, if you do not have children at your death and your estate plan references a child who exists only in theory, it can present unnecessary complications.

While it might be a good idea to acknowledge future children in your estate plan, avoid getting bogged down in the details. Default language, regular estate plan reviews, and clear communication with trusted decision-makers can help strike the right balance.

Pros. If you anticipate having a child sometime in the future, you can create a flexible plan that considers the possibility and guarantees their inclusion in your estate plan, preventing their accidental disinheritance and allowing you to express your guardianship wishes. Having a plan is better than having no plan.
Cons. Planning too far in advance may be overkill if you are not currently expecting or planning to have children. It could lead to a plan that does not align with present circumstances or your future wishes and makes it harder for your executor or trustee to smoothly wind up your affairs. Flexibility and simplicity are key.

Many Parents Lack Estate Planning Documents

Some of the latest findings on estate planning paint a concerning picture about the preparedness of Americans to deal with their sudden death or incapacitation.

According to a 2025 survey from Caring.com, the number of Americans with a will has declined steadily since 2022 and is now at around 24 percent.^[1] In other words, around three in four Americans have no plan for how their money and property will be distributed at their death, who will inherit it, when their beneficiaries will receive their inheritances, who will control distribution, and who will raise their minor children if something happens to them.

While the birth of a child was the fifth most common reason for individuals without an estate plan to consider creating one, the majority of respondents with minor children have no estate plan.^[2]

This situation is particularly concerning because it means that many parents have no plan in place to protect their children if they die or an illness or injury prevents them from taking care of their children, either temporarily or permanently (i.e., incapacity).

Parents without an estate plan might not realize that a will does more than handle accounts and property—it lets them provide specific guidance about who should care for their minor children in the event of an emergency. By outlining guardianship in a will, parents get a voice in deciding who takes responsibility for their children instead of relying solely on the court.

Considering Future Children in an Estate Plan

Many parents have not even planned for their existing children, let alone children who are not yet born or may never exist.

Planning for future children in an estate plan represents the other side of the planning coin and presents the prospect of being overprepared, but it is not entirely unwarranted.

The accidental omission of a child in an estate plan does occur. There are prominent examples of this happening to the children of celebrities, such as Heath Ledger. When Ledger died in 2008, his will—written before his daughter, Matilda, was born—left everything to his parents and siblings. Despite this, Ledger’s family chose to give his entire estate, worth around $16 million, to Matilda.^[3]

The cause of inadvertent omissions in such cases is that the parents’ estate plans had not been updated after the children were born. This highlights the importance of regularly reviewing and updating an estate plan, especially when your family is growing—whether through a pending birth or adoption.

Among people who do have an estate plan, there is a tendency to “set it and forget it” and not make regular updates. Caring.com found that nearly one-quarter of respondents had not updated their estate plan since creating it.^[4] Others had waited a decade or more, instead of the recommended three to five years, to update their plan.^[5]

Planning for children who are not yet part of the family can avoid the worst-case scenario of parents failing to put guardianship and inheritance measures in place, as well the equally disastrous scenario of having an out-of-date estate plan that omits a new family member. However, it adds layers of complexity and requires a balance between planning ahead and avoiding overly convoluted what-ifs that make a plan difficult to execute.

Parents who want to plan for future children should focus on creating a solid but flexible foundation that can be easily adapted as life changes. Here are some ideas about how to achieve that:

Use Inclusive Language in Your Documents

Broad estate plan provisions can ensure that any future child is automatically considered part of your estate, alongside your other children if you have any, and receives a share of it. For example, phrases such as “all my children, living or hereafter born or adopted” cast a wide safety net that captures all your children, born and unborn.

Using language that treats all children equally can prevent accidentally leaving a future child out of your estate plan. It can also help avoid familial strife or legal battles over inheritance.

This approach assumes that you would want a new child to be treated the same way as your other child(ren). However, as parents know, no two kids are the same. What might be suitable for one may not make sense for another. Therefore, it is equally important to update your plan following the birth or adoption of any children.

Consider Trust Provisions

Parents have the flexibility to decide how distributions will be made to their children, whether through a revocable living trust or testamentary trust provisions in their wills. Trusts can be set up to manage money and property for future children under the direction of a trustee, allowing distributions to be made when certain conditions are met, when specific milestones are reached, or entirely at the trustee’s discretion.

Giving wide authority to a trustee can help offset future uncertainties about when and how distributions should be made, but relying so much on a single individual can be risky, particularly when you are not sure how an unborn or yet-to-be-adopted child will turn out and what their needs will be.

Express Guardianship Wishes

When it comes to guardianship for future children, you are not naming a guardian for a specific child but establishing a guideline for guardianship of any and all minor children. Clauses might stipulate that the guardian named for existing children will be the same for a prospective child. However, before taking this step, talk to potential guardians about their willingness to take on additional responsibilities.

You may understandably want to keep the kids together and not name multiple guardians, but kids can have specific or special needs that are better suited to different guardians, and this is impossible to know before a child is born or adopted. Again, no two children are exactly alike.

Naming a guardian too far in advance can also fail to account for changing circumstances in both the children’s and the guardians’ lives. Understand that for all of your children—actual and hypothetical—expressing guardianship preferences does not guarantee a specific outcome. The court will ultimately make the final decision based on the child’s best interest after considering the prevailing circumstances.

Avoid Excessive Complexity

A thorough estate plan that broadly incorporates what could happen is generally a good approach. However, the more contingencies you plan for, the more complex your estate will be to administer after your death.

Including numerous if-then scenarios could overwhelm executors or trustees and potentially lead to prolonged probate, higher legal costs, and disputes about your true intentions.

Plan for What Happens If You Die Without Children

Depending on how your plan is structured, planning for children you never have can produce several outcomes:

If your will or trust uses broad terms such as “my children” or “my descendants” or your plan references specific children who were never born or adopted—and you end up childless—your money and property will typically pass to your named contingent (backup) beneficiaries, if any.
If you created elaborate alternative distribution plans, your executor or trustee would have to determine which scenario, if any, applies. In the absence of applicable scenarios, your money and property would likely pass to your contingent beneficiaries, or, in the absence of those, according to your state’s default inheritance laws.
If you did not name contingent beneficiaries and there are no other clear instructions in your estate plan, your estate may need to go through the probate process. The probate court will use default state laws to determine who will receive your money and property, most likely your spouse, parents, siblings, and other relatives.

Helping You Plan for Every Scenario

When incorporating unborn children into an estate plan, the goal should be clarity and simplicity to make the execution of your estate as smooth as possible.

Do not overthink the specifics of how to divide your money and property among hypothetical future children. Focus on creating a flexible plan that accounts for the possibility of future children and clearly outlines your wishes for guardianship as well as the distribution of your money and property—both with and without children.

The most important thing is to have a plan in place and to update it in accordance with life’s changes. With help from an estate planning attorney, you can create a plan that balances what the future might hold and the demands of the here and now. Contact, Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning and Medicaid planning attorney, at (443) 741-1088; (301) 941-7809 or (202) 640-2133 to schedule an appointment.

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE OR TAX ADVICE.

^[1] Victoria Lurie, 2025 Wills and Estate Planning Study, Caring (Feb. 18, 2025), https://www.caring.com/caregivers/estate-planning/wills-survey.

^[2] Id.

^[3] Caris Davis & Melanie Ambrose, Heath Ledger’s Daughter to Inherit Entire Estate, People (Sept. 29, 2008), https://people.com/crime/heath-ledgers-daughter-to-inherit-entire-estate.

^[4] Lurie, supra note 1.

^[5] Id.