In our estate planning practice, clients often ask whether their adult children have a “right” to inherit in Florida. [this discussion is not addressing minor children–their rights can be different]. While the question is a simple one, the answer is somewhat of a “mixed bag.” As with many legal questions, the answer is “it depends.”
The first consideration is whether the parent had a Last Will and Testament (or a Revocable Trust). If he or she did, then the parent can name anyone they wish as beneficiary under their Will or Trust. This could include adult children but it is not required. Under Florida law, an adult child does not have a right to be named as beneficiary under a parent’s Will or Trust. So in this sense, an adult child does not have a right of inheritance in Florida. This being said, there are situations where the answer could be different.
One such situation involves an “intestate” estate, i.e. an estate where the deceased person died without a Will or Trust. In that case, Florida Statutes Section 732.102 and Section 732.103 provide that if the decedent had no spouse but had children, the entire estate passes to the decedent’s lineal descendents (children, etc.) in equal shares. If the decedent died with a spouse and had children from a prior marriage, then the spouse receives one-half of the intestate estate and the children receive the other half. This is what the law imposes in the absence of a Will.
What should be obvious by this discussion is that if a person wishes to by-pass their children and not leave anything to them, then they must have a Will. Failing to do so could result in the intestacy statute giving the children an inheritance even if that is not the parent’s intention.
In writing this blog, it sounds harsh that a parent might exclude an adult child from inheriting. However, it happens–often because of alienation, neglect, or family discord. Many parents have a close, loving relationship with their children and want to pass along their assets to them at death. But why should a parent who has been alienated, neglected, abused by their adult children leave anything to them? In Florida, they don’t have to so long as they plan properly.
A real life example might demonstrate how this works. A man, we’ll call “Bob,” came to us after his mother died. The mother had been ill for many years and Bob took care of her through those tough years. Bob had two siblings, neither of whom visited or called the mother in her last ten years. In return for Bob’s years of care, the mother wanted Bob to receive her house after she passed. The mother prepared a Will–a do-it-yourself version–leaving everything to Bob. Unfortunately, the mother did not consult an estate planning attorney. After she died, Bob brought the Will to us to be probated. Unfortunately, the do-it-yourself Will was defective and got thrown out by the probate court. As a result, the mother was deemed to have died intestate. This meant that instead of her wishes being carried out so that Bob received the house, the house went to all three children, including the two who had totally abandoned her! This was not the mother’s wishes but failing to properly plan produced these results.
As shown by the example above, having the advice and assistance of an experienced estate planning attorney can make all the difference.