Children have some of the strongest inheritance rights (after a surviving spouse) under Florida succession law (where there is no last will or trust designating the estate beneficiaries). This legal protection for children has been around for centuries and is what many people want, anyway. However, when the law talks about “children” or “issue” (which also includes grandchildren and great-grandchildren), the assumption tends to be that they are the decedent’s own biological children—usually called “natural children. In today’s culture, blended families are extremely common; however, making today’s topic of Florida estate planning for adopted and stepchildren a very important concern for many.
FLORIDA ESTATE PLANNING FOR STEPCHILDREN AND ADOPTED CHILDREN
As we all know, though, it’s not uncommon to think of stepchildren or adopted children as your own. If you’re in that situation, you’ll need to take extra care when completing your Florida estate planning for adopted and stepchildren—because, under Florida law, natural children, stepchildren, and adopted children are not always treated the same.
In Florida, legally adopted children are assumed to have intestate inheritance rights in an adoptive parent’s estate equal to the parent’s natural children. On the other hand, a child who has been adopted is presumed not to have inheritance rights in his or her biological parent’s estate. So, if you have a biological child who has been adopted by someone else, you’ll need to use a Florida last will or similar estate-planning strategy, such as a Florida revocable living trust, if you want that child to inherit from your estate. Or, if you adopted a child who you do not want to share in your estate equally with your natural children, you’ll also need to address that topic in your estate plan.
Unlike formally adopted children, stepchildren do not have any intestate inheritance rights (unless they have been legally adopted). What this means is that, if you want to leave property to a stepchild who you haven’t legally adopted, you need to make a special provision in your will, trust, or other estate-planning instrument.
Stepchildren also raise potential estate-planning complications in “blended families,” where one or both spouses have children from a prior relationship. In part, this is because the powerful inheritance rights provided to surviving spouses by Florida law include an “elective share.” Florida’s elective share statute guarantees a surviving spouse at least a 30% interest in a decedent spouse’s estate—including some non-probate assets and even if the decedent spouse had a will that said otherwise. Or, if a decedent spouse leaves no will, the surviving spouse’s intestate share is 100% of the estate (if neither spouse has children or each only has children with the other) or fifty percent (if either spouse has children from another relationship).
Most people choose to provide for their spouses in their estate plans, but, in a blended family, the elective share and inheritance rights of natural children raise the risk of inadvertently disinheriting your own children. Let’s say Randy leaves his considerable estate in its entirety to his spouse, Sharon. Both spouses have adult children from a prior relationship, but they do not have any children together. After Randy dies, Sharon (who now owns Randy’s entire estate including any assets they jointly owned) dies without a will.
By law, Sharon’s estate (including all assets that were in Randy’s estate) descends to Sharon’s children. Sharon didn’t adopt Randy’s children, and Randy didn’t adopt Sharon’s. So, Randy’s children don’t have a claim to any of the property in Sharon’s estate—though they would have otherwise inherited significant wealth from Randy.
Even if Randy expressly bequeathed all of his property to his own children, Sharon still receives at least 30% of Randy’s wealth (including non-probate assets) due to the Florida elective share laws—unless she previously waived the elective share in a Florida prenuptial agreement or as part of the couple’s comprehensive state plan. Upon Sharon’s death, the wealth comprising the 30% elective share will pass to Sharon’s (but not Randy’s) children.
It’s worth noting that scenarios like this are not uncommon and don’t require any dishonesty or bad intentions—just lack of planning. Fortunately, though, there are more than one effective Florida estate-planning strategies for avoiding inadvertent disinheritance and ensuring that the correct heirs receive wealth.
In the above example, Randy could by will leave a life estate in real estate to Sharon, using a life enhanced “lady bird” deed in Florida, with the remainder to his children. This allows Sharon to live in the home for life but makes sure Randy’s children ultimately inherit it. Similarly, he could create a testamentary trust that, upon Randy’s death, ensures Sharon retains the same standard of living for the rest of her life, after which the trust assets are distributed to Randy’s kids. Or, the couple might create a joint trust benefiting both of them for life. After the first spouse dies, the trust becomes irrevocable (meaning the surviving spouse can’t change the terms), and then, upon the second spouse’s death, the remaining trust assets are distributed among the children of both Randy and Sharon (or whichever other beneficiaries they choose).
Intestate Succession and Children in Florida
Intestate succession rules in Florida can also lead to results in blended families that might seem unfair or even cause friction in the family. Let’s say, using the above example, that Randy and Sharon also have two children of their own—and that all six children (Randy’s two, Sharon’s two, and the couple’s two) grew up together in one big happy family (this might make a good premise for a sitcom).
When Randy dies intestate, Sharon receives half of his estate, and the other half is split equally among Randy’s four natural children (including the couple’s two). Then, when Sharon dies, her estate (including the half she received from Randy) is divided among Sharon’s four natural children. And Sharon’s estate also included the couple’s most valuable asset—the Florida homestead property that they jointly owned as tenants by the entireties in Florida and that therefore didn’t pass through Randy’s estate.
The ultimate result is that the inheritances received by the children are not near equal. The couple’s two children end up splitting half of Randy’s estate and half of Sharon’s larger estate; Sharon’s children from prior to the marriage split one-fourth of Randy’s estate (through Sharon) and half of Sharon’s larger estate; but Randy’s two children from a prior relationship only inherit one-eighth each of Randy’s smaller estate.
Intestate succession in blended families can get confusing, and it can easily result in inequitable outcomes, like in our example. The good news, though, is that confusion and potential unfairness can be easily avoided with a good Florida estate plan. In the above example, the couple could have simply held their assets in a trust for as long as either remained living, with instructions to distribute remaining trust assets equally among the six children after both Randy and Sharon passed away. That way, they both have an ample means of support for life and know that the children they raised will all share equally in the family wealth after their parents’ passing.
An experienced Florida estate-planning attorney will be familiar with both Florida intestate succession rules and the many estate-planning options available under Florida law. With a well-thought-out estate plan, you can avoid the confusion and occasional unfairness of intestate succession and make sure that your wealth ends up with whichever children or other beneficiaries you want to provide for.
Steve Gibbs, Esq.