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In Florida, inheritance rights of children in an estate depend on whether the decedent left a will.  If there is a will, it will be clearly stated how much each child should inherit.  In many cases, this is a straightforward process.  For example, one may state that the decedent wants each of his two children to get 25% of his assets.  In that case, the court will have to follow through with that distribution.  Without a will, though, the laws of intestate succession determine how much each child receives.

In Florida, you have the legal right to distribute your estate as you see fit.  There are laws protecting your spouse from being entirely disinherited (unless you have a valid pre-nuptial agreement).  But there is no law tat states that you must include children in your will.  A parent can exclude one or more of the children from the will, and this will typically be respected by the court.  However, there are a few exceptions.

  • Children born or adopted after a Will was written.  In general, like many other states, Florida has laws to protect children who may have been unintentionally 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 or adopted after the will was written.  And if there is no will, then the probate court will permit the unborn/later adopted child 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.  There is no requirement that you leave a token amount to the child you want to disinherit (“I leave my daughter Sarah Ten Dollars”).  Instead it is sufficient to say “I intentionally make no provision for my daughter Sarah.”
  • 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 situation of illegitimate children, and if there is nothing written in the will, some courts will treat them as other biological children.

Can My Child Invalidate My Will?

Many certainly would like to and many will try.  In some cases, the inheritance rights of 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 was not executed according to Florida probate laws.  There are a number of intricacies within these laws.  If any technicalities are not followed, the will may be declared invalid.

Another reason a will can be declared invalid is if the court finds the decedent was coerced or “unduly influenced” 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 court will investigate whether there is a prior valid will.  If not, then the distribution of the estate will take place according to the laws of intestacy.

A Few Special Circumstances.

While much of the inheritance rights of children in Florida are 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.  There is also a provision for family allowance to access support for a dependent spouse and/or minor children.

Generally though, if there is a child and a surviving spouse, then the two will split the state. The spouse will receive 50% of the estate and the child or children will receive 50% of the estate.  If there is no surviving spouse, the child or the children will inherit 100% of the estate in intestacy.

Step-children, those given up for adoption, and foster children are wholly excluded from intestate inheritance rights.

If you are not sure what the inheritance rights of children are in your situation, what your children will inherit, or what your parents’ will might entitle you to in the future, speak to  a Florida lawyer.  You will learn more about your rights and your options.