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. One crucial aspect often overlooked is how to include your unborn child in estate plan documentation. 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?
Too much planning is generally preferable to insufficient for parents of minor children. The same can be said for those 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 acknowledging future children in your estate plan might be a good idea, 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.
Some of the latest findings on estate planning paint a concerning picture of 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 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, most 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 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.
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]
In such cases, the cause of inadvertent omissions 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, significantly when your family grows—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 to update their plan instead of the recommended three to five years.[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 and 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 and avoiding overly convoluted what-ifs that make a plan challenging to execute.
Parents who want to plan for future children should focus on creating a solid but flexible foundation that can quickly adapt to life changes. Here are some ideas about how to achieve that:
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, updating your plan following the birth or adoption of any children is equally important.
Parents can 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 broad 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, mainly when you are not sure how an unborn or yet-to-be-adopted child will turn out and what their needs will be.
Regarding guardianship for future children, you are not naming a guardian for a specific child but establishing a guideline for guardianship of any 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. Still, 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 expressing guardianship preferences does not guarantee a specific outcome for all of your children—actual and hypothetical. After considering the prevailing circumstances, the court will ultimately decide based on the child’s best interest.
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.
Depending on how your plan is structured, planning for children you never have can produce several outcomes:
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 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 and the distribution of your money and property—both with and without children.
The most important thing is to have a plan in place and update it per 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. Book a FREE Discovery Call today.
[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.
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