Are step-children considered “lineal descendants” of the decedent?
A Florida appellate court recently held that the term “lineal descendants” does NOT include stepchildren. Timmons v. Ingrahm, 36 So.3d 861 (Fla.Dist.Ct.App.2010).
In the Timmons case, the decedent’s Will defined the term “children” to include the decedent’s adopted children and the children of his spouse, whom he had never adopted. The Will went on to create two trusts – a marital trust and a family trust. The surviving spouse had the right to withdraw principal from the marital trust (subject to some limitations) during her lifetime and upon her death all of the trust property was to be added to the family trust and distributed to the decedent’s children (as defined above). Unfortunately, the decedent also gave his spouse a limited power of appointment over the family trust allowing her to appoint the trust property to the decedent’s “living lineal descendants.” Naturally, she appointed it all to her children and not surprisingly the decedent’s children had a problem with that decision!
There are probably two morals to this story. The first moral is for drafting attorneys: give careful consideration to the language used in an instrument. The definition clause will not necessarily be controlling. The second moral is for the testator: unless you are married to the one and only love of your life and all children are the product of that union, then don’t give a power of appointment. Step relationships frequently fall apart after the death of the biological parent.