In general, inheritance rights include very close relatives such as a surviving spouse and sometimes children or grandchildren who may have the right to claim an inheritance, and in some cases this situation can override what is stated in one’s Last Will & Testament. Inheritance rights can be designated in a Last Will, Trust, or other legal documents or by state law if no such documents exist. The strongest rights to the intestate estate (no Last Will) in Florida belong to the surviving spouse. According to Florida inheritance laws, the surviving spouse will usually receive 100% of the estate if there are no surviving children or if the only surviving children belong to the surviving spouse and the deceased.
In Florida, if a loved one dies intestate, their property would be transferred to their spouses, children, grandchildren, the deceased’s parents, and finally the decedent’s siblings. If none of the heirs-at-law remain alive, then other descendants may have a claim to the estate.
In most circumstances, a surviving spouse and a minor child cannot be completely omitted or excluded from a Last Will or the deceased party’s estate.
In the community property states (i.e., Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska), such states have their own rules about what spouses own and can claim. Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary (Prenup, Postnup, etc.). Each spouse can do whatever he or she desires with his or her own half-share of the community property and with his or her separate property.
In many other states, there is no rule or guarantee that property acquired during marriage is owned by both spouses. Consequently, to safeguard spouses from being disinherited, most of these states give a surviving spouse the right to claim 30% to one-half of the deceased spouse’s estate, no matter what the Last Will or other documents may state. In some states, the amount the surviving spouse can claim depends on the duration of the couple’s marriage.
If the survivor goes to court and/or proactively asserts that the share allowed by law is valid, these provisions come into effect. If a surviving spouse does not object to receiving less, the Last Will & Testament is honored as written.
In most states, obtaining a divorce automatically revokes gifts made to a former spouse in a Last Will. However, to be on the safe side, if one gets divorced, then create a new Last Will which revokes the older one. Afterward, one can simply leave their ex or former spouse out of their new estate plan.
Generally, adult children have no right to inherit anything from their parents. In certain circumstances, minor children may be entitled to claim a share of a deceased parent’s property. The Florida Constitution prohibits the head of a family from leaving his or her primary residence or homestead to anyone other than a spouse or minor child if either is alive.
A number of other states do have laws to protect against accidental disinheritance. These laws usually kick in if a child is born after their parent made a Last Will that distributes property to siblings, and the parent never revises the said Last Will to include that child. The law presumes that the parent did not intend to omit the newest child, but just did not timely or adequately review and revise their Last Will. In such a circumstance, the overlooked child may have a right to a significant portion of the parent’s assets.
In some other states, these laws apply not only to children, but also to any grandchildren of a child who has passed away.
If one decides to disinherit a child, or the child of a deceased child, one’s Last Will or other legal documents should clearly state their intention to do so. Alternatively, if one has a new child after they have prepared their Last Will, then they should promptly create a new Last Will or estate plan.
The foregoing is a brief and very general overview of what is considered estate planning and inheritance rights in Florida, as well as other states.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.