Florida Probate Litigation Lawyer Blog
The number of blended families in America is increasing and with it, so is the need for competent estate planning. As the modern blended family replaces the “traditional” family, tension arises from traditional intestacy laws. Florida residents need to understand the implications these laws have on their family structure and on the obligations that the laws place on individuals wishing to ensure that their intended beneficiaries receive the intended bequests.
When a person dies without a will, the laws of intestacy spring into effect and the property of the deceased person is distributed to family members in accordance with state law. Historically, the law of intestate succession has focused on biological relationships. In Florida, the law of intestacy has yet to be reformed to better address those family structures that include stepchildren.
WHAT IS THE PROBLEM?
The problem that stepchildren face in terms of inheriting from their stepparent is that they are not included in the class of intestate heirs. If the person that passes away does not have a living spouse or living parents, then his or her property is split in equal shares among biological descendants, assuming no will was drafted. While under Florida’s intestacy laws, an adopted person is deemed a lineal descendant of the adopting parents and is one of the natural kindred of all members of the adopting parents’ family, stepchildren are not afforded the same legal rights. Even when there is a will, a lack of specificity in the naming of beneficiaries may lead to unintended problems for stepchildren, even inadvertent disinheritance.
Florida Statutes define a “Child” to include a “person entitled to take as a child…by intestate succession from the parent whose relationship is involved.” As such, an adopted child would fit this definition; however, the statute explicitly excludes from the definition “any person who is only a stepchild.” Stepchildren are also explicitly excluded from the definition of “Descendant.” Therefore, even when a will is drafted, if the language of your will refers only to “my children” or “my descendants,” without more specificity, then your stepchildren may not have a right to inherit from you through your will.
HOW CAN THE PROBLEM BE AVOIDED?
Under Florida law adopted children are afforded the same rights as biological ones. Therefore, a way to avoid inheritance problems with stepchildren may be to formally adopt them. This process would entitle stepchildren the right to an inheritance, even in intestate succession.
However, proper estate planning can yield the same benefits in a more efficient manner. When drafting your last will and testament, specificity is paramount, and naming your stepchildren in your will would suffice to ensure that your true wishes are followed. Nevertheless, estate planning can be a complex task and the best way to avoid any unintended consequences is to retain a skilled attorney to draft your estate planning documents.
SUMMARY and CONCLUSION
Probate rules and the law of intestate succession in Florida preclude stepchildren from having an automatic legal right to inherit from their stepparent. Even when a stepchild is treated as a full biological child during the person’s life, this is not enough to guarantee that the stepchild will get the same legal benefits. Thus, proper planning is necessary to avoid this problem.
If you or someone you know is interested in establishing a trust or drafting a will that addresses the aforementioned issues, please do not hesitate to contact the experienced estate planning attorneys at Chepenik Trushin LLP, who are ready, willing, and able to take care of all of your estate planning needs.
