Florida Probate Litigation Lawyer Blog
In Florida, “lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” Essentially, a descendant is a blood-relative of the deceased. Under Florida law, adopted children are also considered descendants for the purposes of Probate.
So what does this really mean? Suppose John, a resident of Fort Lauderdale, Florida, makes a will that simply states, “I leave everything I own to my lineal descendants.” Now, suppose John has two children from his previous marriage (related by blood), and his second wife, Jane, has two children from her previous marriage, neither of which John has adopted. This means, if John dies without modifying his will, John’s step-children receive nothing.
John’s step children will receive nothing because, under Florida law, a technical term, such as “descendant,” used in a Will, is accorded its legal definition unless obviously used by the deceased in a different sense. Additionally, in construing a will, the courts look to the intent of the deceased and try to give effect to the deceased’s wishes. In determining the intent of the deceased, the courts look to the wording of the will. If the will says the word “descendant,” and the word is not defined, the court will assume that the deceased intended “descendant” to have its ordinary legal meaning.
If John chooses to modify his will to include his step-children, he can still include the term “descendant,” but he must evidence his intent to expand the definition of descendant to include step-children. Also, under Florida law, the intent to expand the definition to include step-children must be obvious on the face of the will. However, if John does not want to modify his will, he could instead take the appropriate steps to adopt Jane’s two children. If John adopted Jane’s two children, Jane’s two children could inherit from John under the Florida definition of “descendant.”
How should someone make their intent to expand the definition of descendant obvious? For example, John could include a clause in his will, that stated, “For purposes of this Will, the term “descendants” shall include, in addition to my natural and adopted children, the children of my wife, Jane.” This statement shows that John considers his children as well as his step-children to be his descendants.
If you or someone you know lives in the West Palm, Broward or Miami-Dade area and are either planning to create a will, revising a will or has a dispute about a will, the probate team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.
