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.

Probate property includes many types of real and personal property that you owned individually. For example, if you owned a house in fee simple, your house would pass to your surviving heirs pursuant to the Florida intestacy laws. However, if you owned a house jointly with a co-tenant, she may have a right to own the entire asset when you die if she had a right to survivorship.

Probate property does not usually include life insurance policies, annuities and retirement accounts. Some types of bank accounts are not probate assets. Under Florida law, these assets are not probate property since  the account owners named beneficiaries and alternate beneficiaries directly in their policies. Probate property does not include life estates, since a life estate reverts to the owner after the life tenant passes away. As a life tenant, you cannot bequeath your life estate.

Under Florida law, you have a right to disinherit anyone except your surviving minor or incapacitated adult children and your spouse. You can disinherit anyone without leaving your disinherited beneficiaries nominal gifts or gifts of $1. If you had additional children after you drafted your will, Florida law presumes you unintentionally omitted them from your will and may provide them with elective shares. Furthermore, your spouse and children may petition your estate for a family allowance before your personal representative distributes your probate assets to your beneficiaries. Generally, a surviving spouse has a right to a forced share of the decedent’s assets, including non-probate assets. Thus, in most cases, you cannot totally disinherit your spouse, and your spouse can elect her share provided under your will or elect the forced 30 percent share of your probate assets.

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

If you have a fairly modest estate, you may not think that it makes sense to set up a trust to take care of your minor children after you pass away. However, you may still have some property that you want to be passed to them after your death.

One of the ways that you can do this is by putting those funds in an account that goes through your will. This is called a custodian account, and you set it up for your kids under the Uniform Gift to Minors Act. This Act allows you to create a custodian account for minor children. These are not the same thing as regular banking accounts that you would set up for a child. Instead, this allows you to deposit money into the account while you’re still alive and set up a successor to take over the account in the event that you die while your child is under 18 years old.

The basic premise is that you are the custodian of the money unless and until you pass away while your child is still under age. However, custodian accounts do not make sense in all situations. In order to find out if this is the best method for you to use in your estate planning process, you need to consult with an estate planning attorney who can look at all of your assets as a whole.

There are many different ways to handle giving assets to your children after your death, so check with your attorney before setting up a custodian account as it may not be the best situation for you. There is no one-size-fits-all approach to estate planning.

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

It’s not an easy thing to consider the possibility that you may not live to see your children grow up and start their own lives. No one wants to think about their mortality, but the fact of the matter is that we must consider these things when we have young children to raise. One of the best gifts that you can give to your children is thinking about who would be the proper guardian for them in the event that you became incapacitated or passed away. They are several questions that you need to consider before choosing a guardian. It might seem reasonable or customary to pick the closest family member, however they may not be the right person for the long job of raising kids. Let’s look at a few factors to consider before you make your selection.

First, make sure that the person you choose is of legal age. Even though you aren’t planning to pass away today, you just never know when that could happen. You don’t want to choose someone who may not yet be an adult by that time.

One of the most important factors to consider is whether or not the prospective guardian really has a concern for your children’s welfare. The unfortunate fact is that sometimes family members may not be the best choice for a guardian if they aren’t close to the children now. You want someone who has a genuine care and concern about the welfare of your kids.

It’s also important to consider whether or not the guardian is physically able to handle the job. Sometimes, older parents may not be the best choice simply because they are not physically able to run after small children. You also want to make sure that the person has the time. For instance, if you have a sibling who would be a good selection but has a very high powered job that causes them to travel a lot, they may not have the time necessary to devote to your kids.

Finally, it’s important to make sure that your potential guardian has the assets necessary to raise your children. You don’t want to choose someone who has financial difficulties or cannot manage money as that might not be the best situation for your kids.

There are many other factors to consider when choosing a guardian for your children. A good estate planning attorney can help you make the selection based upon different criteria. Remember that a family member may not always be the best choice; in fact, you may have a good friend that meets your needs better.

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

If you have children, one of the most important parts of your estate plan is your Will, with which you nominate a guardian to care for your kids in the event both you and your spouse pass away. Many parents make a Will naming a guardian while their kids are babies or toddlers, and never reevaluate their choice. This is not a good move.

Think about how many things change in a family’s life between the time a child is born and the time that child reaches the teen years. The child has developed their own unique personality, preferences, relationships, and activities. The person originally named as guardian might have moved away, your families may have grown apart, or they may simply no longer be in a position to serve as guardian.

This is why every few years, or when your family experiences a major life event like a marriage, a divorce, a new baby, or even a move, you need to reevaluate your estate plan – including your choice of guardian – to make sure it’s still the best plan for your family.

What if you review your plan and discover that changes need to be made? You’ll want to make an appointment with a qualified estate planning attorney who can help you fully evaluate your current needs and bring your estate plan up to date.

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