Definition
The omission of a legally entitled heir from a testator's will. Preterition occurs when a testator fails entirely to mention a forced heir — typically a child or descendant — in the will, neither leaving them a share nor expressly disinheriting them. The consequence depends on the legal system: in Roman and civil law traditions, preterition traditionally voided the will entirely; in modern American law, pretermitted heir statutes typically entitle the omitted heir to an intestate share rather than invalidating the entire instrument.
Common Language
Modern common usage (Wiktionary): The act of passing by, disregarding, or omitting. Also used as a synonym for paralipsis (a rhetorical figure in which the speaker draws attention to something by pretending to pass over it) and, in theology, the doctrine that God passes over the non-elect in predestination.
Historical common usage (Webster's 1913): The act of passing or going past; the state of being past. Also a rhetorical figure (paraleipsis) by which a summary mention is made of something while pretending to omit it.
The gap matters for researchers: the common-language senses — rhetorical and theological — appear throughout classical and early modern literature and have no legal weight. A researcher encountering "preterition" in a historical text must determine from context whether the author means omission from a will, a rhetorical device, or a theological doctrine. Legal dictionaries consistently limit the term to the testamentary sense, but period sources, especially those drawing on Roman law scholarship, sometimes move between meanings without notice.
Common Confusion
Preterition is frequently conflated with exheredation (disinheritance). They are opposites, not synonyms. Exheredation is an affirmative, express act by which the testator deliberately excludes an heir by name. Preterition is the absence of any mention — neither a bequest nor an express exclusion. The distinction was fundamental in Roman law: exheredation was permitted; preterition was not, and silence voided the will. Modern American pretermitted heir statutes occupy the same conceptual space as the Roman preterition rule but soften the remedy. Researchers treating the two terms as interchangeable will misread both historical civil-law sources and modern statutory materials.
Why It Matters in Research
The term carries different legal weight depending on which legal tradition — and which century — the source reflects. In Roman law, preterition of a suus heres (child in the testator's power) rendered a will void; in classical civil law systems descending from Rome, the consequence persisted in modified form through forced heirship regimes. Researchers working with pre-twentieth-century American sources will often find the term imported directly from civil law commentary, even when the underlying jurisdiction followed common law.
In American common law states, the operative concept shifted from "preterition" as a Latin term of art to "pretermitted heir" as the statutory label. Many state statutes now use "pretermitted" rather than "preterited," and case law tends to follow the statutory vocabulary. Researchers using historical indexes should search both forms.
Louisiana presents a persistent research trap: as a civil law jurisdiction with forced heirship traditions, Louisiana materials use preterition in a sense closer to the Roman original and with different remedies than common law states. A preterition case from Louisiana is not interchangeable with a pretermitted heir case from California, even when both involve omitted children.
Corpus researchers should also note that the rhetorical and theological senses of preterition appear in legal treatises that engage classical sources — particularly natural law works, ecclesiastical law commentaries, and early American essays drawing on Roman legal tradition. The term may appear in a document that is technically legal without carrying the testamentary meaning.
Historical Dictionary Support
The three source dictionaries agree on the core definition — omission of a legally entitled heir by a testator — and all anchor the term in civil law. Black's (both editions) and Rapalje & Lawrence converge without variation on substance, reflecting the term's stable technical meaning within the civil law tradition by the late nineteenth century.
Rapalje & Lawrence adds the most doctrinally specific content, noting that preterition rendered a will null under Roman law, while exheredation was permissible. The entry's citation to Colquhoun's Roman Civil Law situates the definition firmly in the classical tradition. Webster's 1913 confirms the legal meaning while also preserving the rhetorical and common-language senses — a reminder that educated nineteenth-century readers would have encountered the word in multiple registers.
What the historical dictionaries do not address: modern statutory development. None of the source dictionaries reflects the American pretermitted heir statute framework, which moved away from the Roman remedy of voiding the entire will toward granting the omitted heir an intestate share. Researchers relying solely on these sources for American testamentary practice will have an incomplete picture.
Jurisdictional Note
Louisiana, following civil law tradition, historically treated preterition as potentially voiding a will with respect to forced heirs; the legislature has modified forced heirship rules significantly since the 1990s, limiting the class of forced heirs. Common law states use pretermitted heir statutes that vary considerably in scope — some protect only children born after will execution, others extend to all omitted children. Researchers should confirm the specific statutory text and its interpretation rather than assuming uniform application of the civil law rule.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Forced Heirship; Intestate Succession; Will Execution and Validity