Stepchildren & Florida Estate Planning

If someone dies without a will or other estate planning instruments in Florida, children are second to inherit, after a surviving spouse. However, many people do not stop to think that state law specifically refers only to biological children – which leaves any stepchildren out in the proverbial cold. In order to make certain that your stepchildren are just as well provided for as your biological children, it is crucial that you use the right tools to plan your estate appropriately.

Intestate Rights Matter

Despite the prevalence of blended families in this day and age, estate planning and probate laws generally only refer to biological children (also referred to as ‘natural’ children). The estate of someone who dies intestate – that is, without a will or other estate planning documents – will be divided according to Florida state law, known as the intestacy statute. In order of precedence, the estate will go to the surviving spouse, then the natural children, then the deceased person’s brothers and sisters and their children, and so on. This also applies when someone has a will or other estate plan, but has failed to make any provisions for certain items of property in it.

Legally speaking, children can fall into three categories: natural/biological, legally adopted, and stepchildren. Adopted children, as long as the adoption has been finalized, are granted the same intestate inheritance rights as a child born to the deceased person – though they are deprived of any rights to their biological parents’ estates upon their passing. Effectively, adopted children exchange one set of inheritance rights for another, as they can inherit from their ‘new’ parents, but not their ‘old.’

There Will Be Enough

If you are concerned about adequately providing for your stepchildren, the only definitive way to do so is to specifically include them in your will and other estate planning documents. If you do not make any specific provision for them, they will not inherit. However, there are several ways that you can achieve this, while still preserving an appropriate share for the surviving spouse. Florida law is very favorable to the surviving spouse, allowing them to claim what is known as the elective share – 30 percent of the ‘elective’ estate, which constitutes the probate estate plus certain non-probate assets such as ‘pay on death’ accounts. If you are aware of this, you can plan around it to make sure there is enough for everyone.

Some people, instead of choosing to write a will and make bequests, may choose instead to place their property in trust for their surviving spouse, especially if the children are your spouse’s natural children. While this allows the surviving spouse to make their own choices about how to treat their own children in terms of bequests, it can create ill feelings between your stepchildren and their parent if a good relationship does not already exist. While you must do what is best for your situation, it is important to consider every situation.

Call A Naples Estate Planning Attorney

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.103.html