In today's world, it is common to see blended families full of biological and stepchildren. It is crucial for parents, who wish to leave an inheritance to their stepchildren, make a will or trust because stepchildren do not have the same inheritance rights as biological children.
Florida's probate laws do not treat stepchildren as a person's legal heir, which means stepchildren do not have an automatic right to inherit from their stepparents. Remember that your children may be the stepchildren of your spouse, and depending on who lives longer may be unintentionally disinherited.
This does not mean that stepchildren cannot be included in the will. To ensure a step-child can inherit from the estate, he or she must be specifically named as a beneficiary.
If the stepchild is not specifically named he or she might not inherit anything. For example, a will that states, "I leave 40 percent of my estate to my children," would only transfer assets to the biological children. This statement would only include a stepchild who has been legally adopted (which would not be a stepchild).
In Florida, a child is a person who is legally adopted or the natural child of the decedent. If the will is found to be ambiguous, a court may try to interpret the intent of the deceased by looking to the plain language of the will. Any general statement found in a will referring to children, will be assumed to mean only biological children unless defined otherwise.
If a person dies without a will, stepchildren will not receive any inheritance under Florida's intestate succession law. This law states that if there is no spouse, the estate would first descend to the biological and adopted children of the decedent. When there is no descendant, the property passes to the parents, and if that is not possible, then the property passes to the decedent's siblings. If the decedent has no heirs, then the property would go to the state.
Another issue may arise for children born out of wedlock. There is no issue if the parent includes this child in the will. However, there is an issue if the parent has died and the child needs proof he or she is related to the parent.
This is more often an issue when the child wishes to inherit from the father. If the father is alive, then a paternity test is usually performed to determine if the child is a descendant. This becomes more difficult to prove when the father is dead. In this scenario, a child's best hope is that an autopsy was performed. Then it could be possible to obtain DNA samples from the father's tissues in order to perform the paternity test.
Under Florida law, the intent to include children in a will must be made clear within the language of the document. This is why it is crucial the will be drafted by an estate planning attorney. An experienced attorney can ensure the intent of the will, and the identity of the will's recipients, are made clear to the court upon the decedent's death.
For more information on how to include your stepchildren in the will, contact Jacksonville Estate Planning attorney David Goldman today for a free consultation at 904-685-1200.