One of the primary motivations for creating an estate plan is to ensure that your assets are distributed in accordance with your personal wishes after your death. In the absence of an estate plan, Florida law determines who inherits from your estate under its intestate succession statutes. Typically, that means your surviving spouse and children will inherit in some proportion, but what happens if you have a child who was born outside of marriage? Will that child be entitled to a portion of your estate? The Vero Beach attorneys at Kulas Crawford & Smith discuss whether a child born outside of marriage will inherit from your Florida estate.
Historical Perspective on Inheritance by Children Born Out of Wedlock
For generations, children born to unmarried parents were not legally recognized as heirs, particularly when it came to the father’s estate. These children were often labeled with stigmatizing terms and denied basic rights of inheritance. Historically, the legal system treated them as having no parental affiliation, meaning they were unable to inherit from either parent without specific legal documentation or recognition.
That outlook began to change significantly during the 20th century. Landmark cases in the United States Supreme Court helped to dismantle the legal barriers that prevented children born outside of marriage from being treated equally. In Levy v. Louisiana (1968), the Court held that denying wrongful death benefits to non-marital children violated the Equal Protection Clause. Then, in Trimble v. Gordon (1977), the Court struck down an Illinois statute that barred children born outside of wedlock from inheriting from their fathers unless the father had formally acknowledged the child in a will. These decisions forced states to update laws and eliminate most forms of discrimination based on a child’s birth status.
When Do Florida Intestate Succession Rules Allow a Child Born Out of Wedlock to Inherit from a Parent’s Estate?
In Florida, like many other states, when someone dies without a valid Will, the estate is distributed based on the Florida Probate Code. If a valid Last Will and Testament exists, the instructions within that document generally control how assets are divided. In either situation, the question of whether a child born outside of a legal marriage qualifies as an heir may still arise, particularly if the estate planning documents use general language such as “my children” without naming specific individuals.
Florida law makes it clear that a biological child is eligible to inherit from a parent, regardless of whether the parents were legally married. In the case of a mother, the connection is usually straightforward. The law assumes the birth mother is the biological parent, and no additional proof is needed. The situation with the father can be more complicated, particularly when the parents were not married at the time the child was born. For a child born out of wedlock to inherit from the father’s estate under Florida’s intestate succession rules, paternity must be legally established. Governed by Florida Statute § 732.108, a child born outside of marriage can inherit from the father if one of the following applies:
- The parents marry after the birth of the child and the father acknowledges paternity.
- A court order establishes paternity.
- The father’s paternity is established by clear and convincing evidence after the father’s death.
What Qualifies as Clear and Convincing Evidence to Establish Paternity?
If the father did not legally acknowledge the child during his lifetime, the burden of proving paternity falls to the child or the child’s legal representative. This might include evidence such as DNA test results, written communications from the father, photographs, financial support records, or testimony from friends and family who can speak to the relationship. Florida probate courts will look at all available evidence when determining whether a father-child relationship existed. Casual or secretive acknowledgment is typically insufficient; the court will want to see behavior or documentation that shows the father accepted and treated the child as his own in a meaningful and consistent manner.
The Benefits of Estate Planning
Although Florida law provides a framework for inheritance, relying solely on intestate succession laws can be risky. This is particularly true if your family includes non-marital children, stepchildren, or estranged relatives. Creating a comprehensive estate plan, including a Last Will and Testament or a trust, allows you to define exactly who should benefit from your estate. Naming each child individually in your estate planning documents removes any ambiguity. Moreover, if you intend to include or exclude a particular child, whether born within or outside of marriage, that decision should be clearly documented. When children born outside of marriage are involved, the benefits of working with an experienced estate planning attorney to create a comprehensive estate plan are clear.
Do You Have Questions about Whether a Child Will Inherit from Your Florida Estate?
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about whether a child born outside of marriage will inherit from your Florida estate, contact an experienced Vero Beach estate planning attorney at Kulas Crawford & Smith by calling (772) 398-0720 to schedule a consultation.
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