Inheritance rights of children in an estate depend a great deal on whether the decedent had a will or not. If there is a will, it will be clearly stated how much each child should inherit, and in most cases, this is a straightforward process. For example, one will may state the decedent wants each of his two children to get 25% of his assets. If that’s the case, the court will have to follow through with that distribution. Without a will, though, that simply can’t happen, and the laws of intestate succession determine how much each child receives.
Why the Will Matters
In Florida, you have the legal right to distribute your estate as you see fit. There is no law that states that you must include children in the will. While there are laws that ensure that your spouse will be entitled to certain things in the estate, there are very few rules dedicated to the inheritance rights of children. For example, a parent can exclude one or more of the children from the will, and this is usually respected by the court. There are, however, a few exceptions.
- Children Born After the Will was Written: In general, like many other states, Florida has laws to protect children who may have been unintentionally/intentionally not added to the will. If there is a will and the child has been omitted, in many jurisdictions, the courts will permit the child to have the same share as the other children provided he or she was born after the will was written. And if there is no will, then the probate court will permit the unborn fetus to have the same share as other children. If a parent wants to disinherit a child, he or she will clearly have to state this CHOICE in the will.
- Illegitimate Children: In Florida, an illegitimate child does not have the same legal protection as one who is legitimate. That said, if you wish to disinherit an illegitimate child, you should clearly state that in the will- most courts are sympathetic to the plight of illegitimate children, and if there is nothing written in the will, some courts will treat them as biological children.
Can a Child Invalidate the Will?
In some cases, the inheritance rights of children a child who has been omitted from the will can be restored if the will is invalidated. There are only certain reasons this might happen in court, though. One way is to prove that the will wasn’t executed according to Florida probate laws. There are a number of intricacies within these laws. If any of those aren’t followed, the will may be declared invalid.
Another reason a will can be declared invalid is if the court suspects the decedent was coerced when making the will. Additionally, if the decedent lacked the mental capacity during his or her lifetime to know what was happening when the will was created, it may be invalidated. If the court deems that the will is not valid, then its contents will be ignored. At that point, the distribution of the estate will take place according to the laws of the intestate.
A Few Special Circumstances
While much of the inheritance rights of children in Florida are fairly straightforward, there are a few circumstances that could change the ultimate decision of the court.
Some courts do require that the estate make an effort to provide reasonable support to a child while the probate case is pending. For example, the court may allow the child to reside in the family home until they reach the age of majority. Unfortunately, this ruling does not apply if the child’s parent has received the entire estate in the will.
Generally, though, if there is a child and a surviving spouse, then the two will split the estate. The spouse will receive 50% of the estate and the child will receive 50% of the estate. If there are several children, they will have to divide just half of the estate among themselves. If there is no surviving spouse, the child or the children will inherit 100% of the estate.
Step-children, those given up for adoption, and foster children are wholly excluded from inheritance rights.
Generally, however, in the state of Florida, the inheritance rights of children are fairly well protected. Even if the deceased parent and child had a falling out prior to death, disinheriting a child is not easy as the Sunshine State is sympathetic to the plight of children. If the child can establish a direct material or paternal link, he or she has the right of inheritance even if the decedent was not aware of the child’s existence while alive.
What do Children Automatically Inherit?
If you’re not sure what the inheritance rights of children are in your situation, what your children will inherit, or what your parent’s will might entitle you to in the future, speak to an estate lawyer. You’ll learn more about your rights and your options. Contact us today!
