Do you know who your children are? From an estate planning perspective, the answer may not be as obvious as you think!
Inheritance rights under Florida law depend on your child’s status in relation to you. Is the person your biological child, a stepchild, perhaps a child who could be conceived and born after your death? Blended family circumstances and modern advances in reproductive medicine can create many issues that impact the estate planning of a parent, and even a grandparent. Another important factor when determining inheritance rights is whether you leave behind a valid estate plan or die intestate (without a plan).
To make sure that your assets end up in the right hands, it is essential to understand what inheritance rights, if any, apply to the children in your life. The laws mentioned in this post apply no matter the age of the child.
Biological Children
You may provide for one or more of your biological children (“natural” children) in your estate plan. But under Florida law, you have no legal obligation to do so. You may choose to include or exclude a biological child, or provide a certain amount to one, and less or nothing to another.
However, the rules change if you die intestate – in other words, without a valid estate plan. In that case, the state mandates certain distributions from your estate. If you have a surviving spouse and no lineal descendants, your spouse gets all. If in addition to a surviving spouse you have children who are not children of your spouse, your spouse gets half and your children get the other half. If you have no surviving spouse, your children take all. These legally required distributions might be quite different from how you would have wanted your assets distributed had you created your own plan instead of leaving it up to the state. For example, a daughter who has not communicated with you for decades would be entitled to inherit the same amount as her brother who has flown across the country to spend every holiday with you. Your financially successful child would get the same amount as his ill sibling who is mired in medical debt. If you have a disabled child receiving SSI and Medicaid, the inheritance could cause him/her to lose those benefits.
Stepchildren
Some stepparents and stepchildren enjoy a strong, loving bond. Many of our clients tell us that for all intents and purposes, their stepchild is their child, end of story. However, under Florida law, your close relationship with your stepchild is immaterial. If you die intestate, Florida law does not recognize your stepchild as your child. The child has no inheritance rights. He/she is not entitled to any portion of your estate. Thus, if you desire to leave your stepchild an inheritance, you must create a valid estate plan that specifically includes him/her.
Adopted Children
A child you have legally adopted enjoys all the same inheritance rights as a biological child. Just as with a biological child, you may include or exclude your adopted child in your estate plan. If you die intestate, Florida law confers on the adopted child all the same rights as a biological child.
Note that a child’s legal ties to the birth parent are severed once he/she is adopted. The child has no legal rights to the birth parent’s estate. However, there is no law that prevents a birth parent from providing an inheritance for a child that has been adopted out.
Children Born Out of Wedlock
A child born outside of marriage is considered a descendant of the mother. Therefore, if the mother dies intestate, the child has inheritance rights from the mother’s probatable estate.
The situation is different with regard to the father. To be recognized as a child of the biological father, one of the following three conditions must be met:
- The father must acknowledge paternity, in writing.
- Legal proceedings (adjudication) must establish paternity, either before or after the death of the father.
- The biological parents must have participated in a marriage ceremony either before or after the child was born, even if the attempted marriage was later considered void.
Note that under Florida law, any legal attempt to establish paternity must be initiated within four years of the child turning 18.
Afterborn Children
An afterborn child is a child conceived during the parent’s lifetime, but born after the parent’s death. For example, a child whose father passes away before the child is born. In this case, Florida law deems the child to have all the same inheritance rights from the deceased parent that he/she would have had if the child was born while the parent was living.
Children Conceived and Born After the Death of the Parent
A child may be posthumously conceived when sperm and/or eggs have been stored for later use. If this medical technology is something you have used, or are considering relying on in the future, you should provide for your not-yet-conceived child in your written estate plan. Otherwise, if you die intestate, the child will have no inheritance rights. Florida statute 742.17 states: A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.
As you can see, children’s rights to inherit from your estate depends on their exact relationship to you, as well as whether you die intestate or leave a plan that spells out your wishes. It is always wise to consult an estate planning lawyer who knows the ins and outs of these sometimes cryptic inheritance rules. Your attorney can help you craft an estate plan that ensures your assets will pass to the children you wish to get them. Contact our attorneys at (561) 625-1100.
