Questions about children born after your Will is signed? Let’s say you are a conscientious person, so you diligently have an estate plan, including a Last Will and Testament (“Will”) and a revocable living trust (“trust”), drafted by an experienced estate and probate attorney.
But now, let’s say after your Will is executed, you have a child (either born to you or legally adopted by you), and, for whatever reason, you do not update your estate plan.
Then you die.
If a child is born after your Will is executed and your Will does not include that child, what happens to that child’s inheritance?
Can the omitted child still inherit?
Or will he or she be completely out in the cold?
In today’s post we will discuss what happens to children born after your Will is executed.
Florida’s Statutes and Children Born After a Will is Executed
In Florida, (with some exceptions, i.e., minor children and homestead property, or court orders for child support), a parent has no legal obligation to leave anything to his or her children.
So, a parent may disinherit a child.
But disinheritance is not looked on favorably by the courts. Indeed, the courts are wary of disinheritance, and are vigilant in protecting against mistakes or the inadvertent disinheritance of children.
Thus, in Florida, by statute, a child born after a Will is executed can still inherit.
That is, if…
He or she qualifies as a “pretermitted child.”
Disinherited is not the same as Pretermitted
There is a difference between an heir (child or spouse) who was disinherited and a pretermitted child (i.e., one who was left out of the Will).
A “disinherited” child refers to the situation where the testator (person making the Will) specifically—purposefully or intentionally—leaves a child out of his or her Will.
A “pretermitted” child, on the other hand, is one who was unintentionally left out of the Will. This can happen if a parent dies without knowing that he or she had a child (or this particular child) or if the child is born years after the Will is made and is mistakenly left out of the Will because the parent died without having updated his or her estate plan to include the child.
A child who has been inadvertently or mistakenly left out of a Will is known as a “pretermitted child.” Florida’s pretermitted child statute is designed to avoid the unintentional or inadvertent disinheritance of a child.
The statute defines a pretermitted child as a child born or legally adopted after the Will is executed. To be a “pretermitted child,” the child must be physically born after the Will is executed.
A child who is born before the Will is executed but only legitimized after, does not meet the statute’s requirements for a pretermitted child.
Children Unintentionally Left out of the Will: What Happens Now?
Normally, a person not mentioned in a Will has no rights and cannot inherit.
But the law makes an exception for children who are unintentionally left out of a parent’s Will (i.e., pretermitted or omitted child), including children born after your will is signed.
There are 3 statutory elements that must be met for an individual to qualify as a pretermitted child. The child must be:
- omitted from the Will,
- born or adopted after the making of the Will, and
- must not have received an advance equivalent to his or her share of the testator’s estate.
If these three elements are proven, then the child who was left out of the Will could still inherit…
- It appears from the Will that the omission was intentional; or
- The testator had more than one child when the Will was executed and he or she left substantially all of his or her estate to the pretermitted child’s other parent, and that parent is alive and entitled to inherit.
If the court determines that the child was inadvertently omitted from the Will, then the child will be entitled to receive his or her share of the decedent’s estate in accordance with Florida’s intestacy statutes.
This may sound straightforward, but keep in mind that everyone’s factual circumstances are unique and the probate laws are complicated—which is why it is always important to work with an experienced probate attorney. For example, in some cases it may be necessary to prove paternity in order to prove pretermitted child status. In other cases, a person who may qualify as a pretermitted child still might not inherit anything. For example, this might happen if the decedent already gave the child an amount equal to his or her intestate share.
If you believe you were inadvertently left out of your parent’s Will, be sure to consult with an experienced estate and probate lawyer.
Get the Estate Planning Help You Need. Protecting Your Family is Just a Phone Call Away.
Helping individuals navigate the probate process is what the attorneys at the Law Offices of Samantha J. Fitzgerald do. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. If you have questions about children born after your will is signed or any other estate planning concerns, we are here to help! Contact us here or email us at: [email protected]