STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK
Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children.
Florida Statute 732.103 lists the intestate succession if the intestate estate does not pass to a surviving spouse under Florida Statute 732.102, or if there is no surviving spouse, the intestate estate would descend as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters; and
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
- (a) To the grandfather and grandmother equally, or to the survivor of them.
- (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
- (c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in Florida Statute 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents.
The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. The subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004. To avoid the confusion of intestate succession of an estate, it is important to retain a competent attorney to draft your estate planning documents. Also, more children are born out of wedlock than ever before, and the legal right to succession of such children has improved in recent years.
The Florida Probate Code provides that for purposes of succession, an individual is the child of his or her natural parents, regardless of their marriage. Proof of maternity is rarely an issue, but proof of paternity can create problems if the biological father has died, and the biological child wishes to inherit from his biological father’s estate. For inheritance purposes, an out of wedlock child usually isn’t considered a child of the father unless the father legally acknowledged the child as his, although there are exceptions to this rule. If the father is alive, paternity testing can be performed to determine if the child is the biological child of the father. If the father is the decedent, and an autopsy was performed, it may be possible to obtain DNA samples from the autopsy tissue blocks to be utilized for the DNA paternity testing. If no autopsy was performed, proving paternity could be difficult for the biological child that wishes to receive an inheritance from his biological father’s estate.