Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Uniform Probate Code §2-101(b). Stated more plainly, if you really want to exclude a person and every descendent, relative and heir of that excluded person, you need to make it crystal clear in the last will and testament. (more…)

Evidence Must Be Compelling to Disinherit

What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will. Fla.Stat. §732.302. (more…)

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child.

The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don't Throw That Away! Do A Decedent's Next Of Kin Have A Protected Right In The Decedent's Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008).

Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, as personal representative of the estate. Shortly after the will was admitted to probate, Terri L. MacMahan filed a petition in the probate court asserting that she is Kingsbury’s biological child, and requested for construction of the will as well as a determination of beneficiaries under the will. (more…)

Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” )

This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative: (more…)