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Can a Stepchild Inherit From a Florida Estate?


Dying without a Florida will means your probate estate will pass under the state’s intestacy laws. Many people do not see the problem with this. Say you are unmarried and are survived by two children. Under Florida intestacy law, your children would automatically inherit your entire estate in the absence of a will.

Sounds simple enough, right? But what if you remarried after your first marriage ended and you now have stepchildren. Do they also inherit under intestacy? Or what about a scenario where you have adopted children or acting as a foster parent? Just who qualifies as your “child” when it comes to Florida probate laws?

Children, Stepchildren, Foster Children, and Afterborn Children

Florida Statutes 732.103 states that part or all of an intestate estate–depending on whether the deceased was married at the time of death–shall first pass to any surviving “descendants” In this context, a descendant refers a child of the deceased–or, a grandchild of a previously deceased child. In other words, let’s say that you are unmarried but have two children. One child dies before you but had a child of their own (your grandchild). In this scenario, Florida law would give one-half of your estate to your surviving child, and the other one-half to your grandchild (as the descendant of your child).

Now, Florida Statutes states that for purposes of intestate succession, the definition of a deceased person’s child “excludes any person who is only a stepchild [or a foster child.” So if you remarried and your new spouse has a child, that stepchild would not be entitled to inherit from your estate. The same would be true for any foster child or other relative you may be caring for, such as a niece or nephew who lives with you.

But let’s say you legally adopt a stepchild, foster child, or another relative. In that case the child would be entitled to inherit under intestate succession. Florida law makes no distinction between natural-born and adopted children. Each has the exact same inheritance rights without qualification. Conversely, if you previously placed a child for adoption with another family, that would sever the child’s legal right to inherit from your intestate estate.

Finally, if you have a biological child, it does not matter if they are actually born before you die. Florida Statutes 732.106 expressly provides for “afterborn heirs,” i.e. children conceived prior to the parent’s death but born afterwards. An afterborn child receives the same share of an intestate receive as they had been alive when you passed away.

Avoid Intestacy by Executing a Florida Will

It is important to keep in mind that all of the above scenarios only exist if you die without leaving a valid Florida will. By making a will (or trust), you can exercise complete control over the disposition of your estate. If you want to make provision for a stepchild, foster child, or another person not covered by the intestacy law, you are free to do so.

Making a will is not difficult, but it is something you should not attempt on your own. A qualified Fort Myers estate planning attorney can sit down with you and help you develop a will that will provide for all of your loved ones. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation today.


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