In the last blog, we discussed the definition of pretermitted children and covered some examples. A pretermitted child is a child unintentionally omitted from a parent’s will because of a parent’s unawareness of the child’s existence. A pretermitted child may be the biological child of a parent unaware of their birth. It may also be the adopted child of a parent. Generally, with adopted parents, it involves the case of a parent who attempted to legally adopt the child before executing their will or it may be that the adoptive parent was not legally able to adopt the child until they had already executed their will.

In addition to a biological child who was born before a parent drafted his or her will, a pretermitted child may be an adopted child. In many cases, a pretermitted adopted child’s adoption goes through after the parent drafts their will. Thus, a child unintentionally left out of their parent’s will receives a share of the estate based on the intestacy statute.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In this three-part blog series, we will discuss the Florida Statutes’ treatment of pretermitted children. We will cover Title XLII, Estates and Trusts, and Section 732 of the 2011 Florida Statutes. This section addresses intestate succession and wills.

A pretermitted child is one unintentionally left out of their parent’s will. A pretermitted child is not one a parent intentionally omitted or disinherited from their will. It does not include a child the parent knew existed but chose not to include in his or her will and it does not include a child born after a parent executed his or her will.

Specifically, a pretermitted child is one that was accidentally or unintentionally omitted from a parent’s will because that parent was unaware of the child’s existence. A pretermitted child is one left out of their parent’s will because the parent never knew they existed. For example, it may be that the father wrote his will before he knew of the child’s existence. It may have been that her father never married her mother and legitimized her. To help children who were unintentionally or mistakenly left out of a parent’s will, most jurisdictions passed mandatory succession statutes allowing them to claim an inheritance regardless.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

As the final blog in the three-part series covering the rights that adopted children have to inherit from their adoptive parents, we will cover the specific intestacy laws governing the order of succession between family members of adopted children. An adopted child typically receives an equal share of his parent’s intestate estate as his or her other siblings. To further elaborate, we will consider a hypothetical scenario in which a parent of an adopted child dies intestate or without a Will. If the adoptive parent leaves behind a surviving spouse, the Florida’s elective share laws will govern the rights of this parent’s children and surviving spouse. If the surviving spouse is the biological or adoptive parent of all of the intestate decedent’s children, the surviving spouse receives all of the decedent’s intestate estate pursuant to Florida law.

However, if the decedent was unmarried, the adopted child receives the same share as his or her siblings. Thus, if the adoptive parent leaves behind an adopted child and other biological children but no living spouse, all of the children are legally entitled to equal shares of their probate estate pursuant to Florida’s intestacy laws. If he or she dies leaving behind a surviving spouse and adopted and non-adoptive children who are not children of the surviving spouse, the surviving spouse receives half of the estate, while all of the children share equally in his or her estate.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Continuing our discussion of the legal inheritance rights that adoptive children have to inherit from their adoptive parents, we’ll look at the specifics of the Florida Revised Statutes. An adopted child is the adopting parent’s lineal descendant, according to Florida law.

However, an adopted child is not a lineal descendant of his or her biological parents, according to Florida law. This means that if you are an adopted child, the Florida Revised Statutes considers you a blood relative or lineal descendant of your adoptive parents. Thus, if your adoptive parents die intestate or without a will, you may inherit from them in many cases. As such, an adopted child who survives his adoptive parents can receive property according to the terms of their wills, but if they die without first creating a will or without a valid will, he or she can rely on the state’s intestacy succession laws.

Florida law does not consider an adopted child as the lineal descendant of his or her biological parents. Thus, if you were adopted, and your biological parents die intestate, you have no legal inheritance rights. However, if you were adopted and your biological parents died testate or with a valid will, you may have legal inheritance rights to inherit under the terms of the will. This is more common today with technological advances allowing adoptive children and biological parents to find one another through electronic internet databases and search groups.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

State laws establish the rights that intestate heirs have when their relatives or spouses die without first creating a Will or without creating a valid Will. Adopted children and adoptive parents may be subject to special state statutes since there are no biological blood relations between them. Typically, state statutes establish an order of priority or succession of an intestate decedent’s heirs. An intestate decedent is one who died without first creating a Will or without creating a valid Will. An example of a Will created invalidly created is one signed without the presence of any witnesses.

In most states, a Will that does not conform to the state probate laws governing testamentary instruments fails as a valid instrument that can govern a decedent’s rights to bequeath property through his or her Will. If a court rejects a Will as invalid, the decedent is subject to his or her state’s order of succession or intestacy laws. This three-part blog series explains the inheritance rights that you have as adoptees or as parents of adopted children. It does not cover the legal inheritance rights that adopted children of same-sex or opposite-sex unmarried partners may have. An adopted child in this scenario may be the biological child of one domestic partner but an adopted child of the other. Furthermore, it will not cover the legal rights that unmarried same-sex or opposite-sex unmarried parents have to inherit from their biological or adoptive children.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you are asking your spouse to waive his rights to an elective share of your probate property by signing a prenuptial or postnuptial agreement, the validity of that waiver depends on several factors. At the very least, you must have entered into a valid written premarital or postnuptial agreement. A binding agreement requires that your spouse waive his inheritance rights voluntarily and without any fraud or duress. In other words, you cannot force him to sign an agreement by threatening him. You must also provide a full disclosure of your financial wealth before you attempt to have him sign away his rights to receive a portion of your inheritance. However, the financial disclosure may only be required if your spouse signs a postnuptial agreement – not a prenuptial agreement. Providing your prospective spouse a full financial disclosure may be in your best interest to avoid subsequent attempts to invalidate your prenuptial agreement. Each of you should also have separate attorneys representing your financial interests, and most courts agree that one attorney cannot represent both of you because of conflicts of interest.

Many spouses enter into prenuptial agreements if they amassed a significant amount of wealth before marriage. This often happens with second marriages or marriages that occur with older couples. To keep property separate, it may be a good idea to speak with an attorney regarding the benefits of drafting a prenuptial or postnuptial agreement to protect your separate assets.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In light of the Florida Probate Code’s statute establishing elective share rights for surviving spouses, is there a way to legally disinherit your spouse? We discussed that without a properly drafted and valid prenuptial or postnuptial agreement, you cannot disinherit your spouse. You can disinherit your spouse if she freely waives her right to receive an elective share by entering into a nuptial agreement. To disclaim her statutory 30 percent mandatory inheritance, your spouse must freely enter into a prenuptial agreement. In some cases, your spouse can waive her elective share rights after marriage by entering into a valid postnuptial agreement. State laws govern the essential elements of binding marital agreements.

In Florida, the Florida Statutes Chapter 732 governs the elective share rights for surviving spouses and their rights to community or marital property. Generally, a spouse’s elective share includes community or marital property and separate property. Fully explaining the marital property rights that spouses have requires more than a 300-or 400-word article or blog.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

The Florida Probate Code is Title XLII, Chapters 731 through 735 of the 2011 Florida Statutes. Pursuant to the Florida Probate Code, a surviving spouse has a legal right to receive an elective share of her deceased spouse’s probate estate at his death. By electing to receive her statutory share, she disclaims her interest in his will in favor of her elective share. Florida law sets a surviving spouse’s elective share at 30 percent of the decedent’s estate.

Thus, a wife who survives her husband has a legal right to disclaim her interest created by his will in favor of her 30 percent elective share. By creating the elective share statute, the Florida Legislature prohibits spouses from entirely disinheriting their surviving spouses. To prevent one spouse from having to rely on the state for monetary assistance and to prevent that spouse from becoming destitute and impoverished, the Florida Legislature allows a surviving spouse to choose an elective share. In some situations, spouses can disinherit one another with proper estate planning, which includes having to draft validly created prenuptial or postnuptial agreements. Although the Florida Legislature does not advocate divorce, it recognized the practical need for some spouses to protect their separate assets.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

There can be a lot of joy and excitement in a second marriage. There can also be a lot of angst about bringing two families with children together. Sometimes it goes very well, while it can be very challenging at other times. Aside from the logistics of blending a family, there are estate planning issues that also need to be addressed early to avoid confusion and conflict down the road.

When you blend a family, it is typically because two people have been married before and had their own children. They may get married to each other and have additional kids together as well, further complicating the estate planning process. There are usually assets that each partner had before the marriage, and then there are assets accumulated during the marriage also. As you can see, there is a lot to think about when it comes to planning an estate like this.

When planning your estate, here are some things to consider:

• Who do you want to have your personal belongings such as jewelry and family mementos?
• Who will get your assets such as investments, insurance, brokerage accounts, etc.?
• Take time with your new spouse to sit down and have an honest conversation about what each of you wants.
• How will you make sure that your children are cared for in the event that you pass away?

These are just a few of the questions and ideas you need to consider when planning your estate in a blended family. While you may be very close to your step children, you likely want to leave personal items to your own kids. This can be a tricky situation unless it is handled properly. The last thing you want to do is cause marital strife or conflict within your new family. An estate planning attorney can help you navigate these tricky waters so that you are not left feeling uncomfortable about your decisions.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Today’s household is much more varied than it used to be. One or both spouses may have been married previously and have children from those marriages, creating a unique family unit.

But coordinating living arrangements isn’t the only challenge for blended families. Quite the contrary, creating a suitable estate plan can be quite a test as well. Fortunately, there are a few things you can do to simplify the process and at least minimize feelings of resentment between siblings after you’re gone:

• A prenuptial agreement is a must, simply because you’ll want to ensure that your children from your previous marriage are adequately provided for upon your death. Without a prenuptial, your share of the estate would pass to your spouse and then when he or she dies, it would be his (or her) children that had inheritance rights – not yours. If you’re already in a blended family, a post-nuptial agreement will work just as well.

• Sit down with your spouse and figure out how you want to divide the estate among all the children. Lay it out on paper and then bring all the children into the fold. If you explain to the kids as a team, then it presents a “united front” and your children won’t feel as if you’re playing favorites to one side of the family over another.

• Choose some items that are special to you – your grandmother’s quilt for example or a sterling silver tea set and specifically designate those items to your children. Making sure that your family’s heritage doesn’t get lost in the mix is an important part of preserving your legacy for future generations. It’s also a great way to connect with your kids.

• Leave your children with video recordings and journals created especially for them. You can explain why you’ve written your Will or Trust the way you did, tell stories that you remember about them when they were little or even childhood stories of your own. Create scrapbooks that include a family tree and if you have it, the history behind that quilt or sterling silver tea set. The more thought you put into these items, the better and your children will feel the love you’re trying to convey.

• If possible, choose someone other than the step-parent to be your executor. A neutral party is ideal – your kids will be much less likely to see the distribution of assets as one-sided.

• To really preserve your assets for your children, create a trust. Your spouse can live off the interest gained from the trust, but cannot touch the original assets which funded the trust. Then when your spouse passes, the assets are distributed to your children.

A good estate planning attorney can help you create a plan that’s fair to all your family members. For more information, contact our office today.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.