There are many situations where a parent may wish to disinherit a child, such as when the parent has been estranged from the child for years. Clients often wonder if they are obligated to leave assets to their children or if they are allowed to disinherit them completely.
Florida's constitution protects the rights of minor children through homestead laws, which prohibit the head of the household from leaving his or her residence to anyone other than a spouse or minor child. Under this law, a surviving spouse is given use of the property for the remainder of his or her life, this is known legally as a life estate, and then the home passes to the minor children. Recently a surviving spouse has been given the option of taking 50% of the interest in the home or the life estate. The homestead law only applies to children who were minors at the time of the death.
If a person dies without a will, any property that person owned during his or her life will pass under Florida's intestate succession law. Intestate succession is a law that regulates the decedent's estate for the remaining heirs. The part of the intestate estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, is given to the children of the decedent. This means that without a will, a person's children will receive part of their estate without the decedent's consent.
Pretermitted children can also inherit part of their parent's estate. A pretermitted heir is a person who is likely to inherit under a will, except that the person who wrote the will did not know of the child's existence at the time the will was written or the child was born after the will was written. This child will receive a share of the estate equal in value to what the other children would have received if the testator had died intestate. This means an unknown child, if not mentioned in a will, could potentially receive a larger portion of the inheritance than other known children.
Many clients mistakenly believe they are obligated to leave a child a nominal inheritance, such as a dollar. If a parent wishes to intentionally disinherit a child in Florida, they are typically better to leave the child nothing. Under Florida law, any person included as a beneficiary in a will becomes an interested party and are entitled to notice of the probate. This means that person must sign all consents, receipts and waivers regarding the estate.
There are some alternatives to disinheritance. One such alternative would be to establish a trust for the child, which would allow a trustee to control the trust property and give the heir an allowance or other stipulations. For instance, a decedent could create a trust that requires the heir to attend rehab and be regularly drug tested.
If a decedent does intend to disinherit either a child, it should be expressly stated in the will. Otherwise, a court could interpret the omission to be a mistake or a failure to update the will. Wills should be drafted by an estate planning attorney, who can discuss your objectives and make recommendations as to the options available to convey property to the ones who matter most.
For more information on child disinheritance and estate planning in Florida, contact Jacksonville attorney David Goldman at 904- 685-1200. Also, feel free to email us to receive a confidential estate planning questionnaire.