04:23
Faizan
If you’re worried that your child might not inherit from your former spouse because you haven't seen or heard from him in years, you might have cause. It depends on his estate plan or his lack of one. If he doesn't leave a will, the issue is pretty clear-cut. If he does and if he specifically disinherits your child, the law is a great deal murkier. You might need a lawyer's help to establish your child's rights.
A Child's Rights Under a Will
If your ex leaves everything – or at least most of what he owned – to you, he can omit your child from his will and the court won't intercede. If he hasn't been part of your lives for years, however, he may include language in his will stating specifically and unequivocally that he does not want your child to receive anything. Florida allows this, but the law includes a couple of loopholes that may allow your child to inherit anyway. For example, if your ex wrote his will before your child was born and it doesn't mention her at all, the court will assume she's a pretermitted child: she wasn't born yet so he couldn't address provisions for her before he died. In this case, she would receive a portion of his estate equal to whatever she would have inherited if he had died without a will.
Support Issues
Even if your ex left your child out of his will, he still has a legal responsibility to provide for her as long as she is a minor, assuming you established paternity. If you have a custody order or a divorce decree that provides for some means to replace the child support he can no longer pay after his death – a provision that he must bequeath her a certain amount of money, for example – the terms of the order prevail over anything he says in his will. You might also be able to make a claim for a share of the family allowance provided for under Florida law. This allowance pays immediate support for the decedent's surviving spouse and dependents during the probate period. If he owes you past-due child support, you can make a claim against his estate for the debt. The executor is obligated by law to pay you after she's paid his taxes, the costs of probate administration, his medical and funeral bills and the family allowance, using estate funds.
Homestead Rights
If your ex has not married or remarried and if he owns his own home, your child is entitled to at least a share of the property. Florida's Homestead Law provides that if the decedent has a minor child but no surviving spouse, the child receives his home. If he had other children, however, and if they are also minors, your child would receive only a portion of the value. Even if your ex's current spouse survives him, your child has a stake in the property when she dies, assuming he held title in his sole name.
Intestate Succession
The most surefire way for your child to inherit is if your ex does not leave a will. In this case, Florida's intestacy laws take over. According to these laws, your child is at least entitled to her share of 50 percent of his estate. Her share depends on how many other children he leaves. For example, if he had three other kids, each of them would receive one-quarter of half of his estate, with his surviving spouse taking the other half. If he's not married at the time of his death, his children divide the entire estate among them, even if he was estranged from one or more of them at his death. The rules for intestate succession do not take into consideration the decedent's relationship with his heirs – these laws are based on kinship only. Your child's intestate share depends on legally established paternity, however. This means your ex either signed an acknowledgment of paternity or the court issued an order naming him as the father if you were not married to him at the time your child was born.
A Child's Rights Under a Will
If your ex leaves everything – or at least most of what he owned – to you, he can omit your child from his will and the court won't intercede. If he hasn't been part of your lives for years, however, he may include language in his will stating specifically and unequivocally that he does not want your child to receive anything. Florida allows this, but the law includes a couple of loopholes that may allow your child to inherit anyway. For example, if your ex wrote his will before your child was born and it doesn't mention her at all, the court will assume she's a pretermitted child: she wasn't born yet so he couldn't address provisions for her before he died. In this case, she would receive a portion of his estate equal to whatever she would have inherited if he had died without a will.
Support Issues
Even if your ex left your child out of his will, he still has a legal responsibility to provide for her as long as she is a minor, assuming you established paternity. If you have a custody order or a divorce decree that provides for some means to replace the child support he can no longer pay after his death – a provision that he must bequeath her a certain amount of money, for example – the terms of the order prevail over anything he says in his will. You might also be able to make a claim for a share of the family allowance provided for under Florida law. This allowance pays immediate support for the decedent's surviving spouse and dependents during the probate period. If he owes you past-due child support, you can make a claim against his estate for the debt. The executor is obligated by law to pay you after she's paid his taxes, the costs of probate administration, his medical and funeral bills and the family allowance, using estate funds.
Homestead Rights
If your ex has not married or remarried and if he owns his own home, your child is entitled to at least a share of the property. Florida's Homestead Law provides that if the decedent has a minor child but no surviving spouse, the child receives his home. If he had other children, however, and if they are also minors, your child would receive only a portion of the value. Even if your ex's current spouse survives him, your child has a stake in the property when she dies, assuming he held title in his sole name.
Intestate Succession
The most surefire way for your child to inherit is if your ex does not leave a will. In this case, Florida's intestacy laws take over. According to these laws, your child is at least entitled to her share of 50 percent of his estate. Her share depends on how many other children he leaves. For example, if he had three other kids, each of them would receive one-quarter of half of his estate, with his surviving spouse taking the other half. If he's not married at the time of his death, his children divide the entire estate among them, even if he was estranged from one or more of them at his death. The rules for intestate succession do not take into consideration the decedent's relationship with his heirs – these laws are based on kinship only. Your child's intestate share depends on legally established paternity, however. This means your ex either signed an acknowledgment of paternity or the court issued an order naming him as the father if you were not married to him at the time your child was born.
Posted in: Estate Laws
