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Disinherited Children and Will Contests


As everyone knows, familial relationships can often be complicated and challenging. Sometimes, tension within families boils over and leads parents to take drastic steps, one of which is disinheritance. Disinheritance is the act of changing one’s will or taking other steps to prevent someone from inheriting one’s property. Often, disinheritance comes as a shock to a child expecting to receive something from his or her parent’s estate, but a child who is disinherited may be able to challenge the disinheritance in court. In this article, we discuss disinheritance and examine the legal rights of a disinherited child.

Florida Inheritance Rights

In Florida, a child’s right to a portion of a parent’s estate depends on whether the parent disinherited the child via a disinheritance clause in a will prior to death. When there is no will present, a child is entitled to a portion of his or her parent’s estate by law. If the deceased parent has a surviving spouse, and that spouse is not the child’s other parent, then the spouse gets half of the estate, and the rest goes to the child. When there is no surviving spouse, the adult child inherits the entire estate. In both of these scenarios, if the child has brothers or sisters, then his or her portion is divided equally among the siblings.

However, there is no law requiring a parent to pass along any part of his or her estate to an adult child via a will. If a parent wants to ensure that an adult child doesn’t have a claim to his or her estate, he or she may express this in a will.

Disinheriting a Child in Florida

As explained below, a parent’s ability to disinherit a child in Florida depends on whether the child is a minor or adult.

Minor children: Parents in Florida have a legal duty to care for their minor children. Therefore, Florida law prohibits a parent from disinheriting a child under the age of 18. Florida’s homestead laws further protect surviving children by forbidding a parent from leaving his or her residence to anyone other than surviving minor children and a surviving spouse. Finally, surviving minor children have the right to claim a family allowance, which gives them funds to live on before a deceased parent’s estate is settled.

Adult children. As noted above, Florida does not prohibit a parent from disinheriting an adult child via a disinheritance clause in a will. However, if a parent dies without a will or trust, his or her surviving spouse and children have a right to inherit his or her estate.

Can Children Contest a Will?

When a parent disinherits a child, regardless of the reason, the court will respect and affirm that decision. However, a disinherited child may challenge this decision by contesting the will. Generally, in order to successfully contest a will, a disinherited child must first show that he or she had a direct financial interest that would be affected were the probate allowed to move forward. Next, the child must make a case based on the specific facts at hand that lay out the legal grounds for why the disinheritance should be reversed.

Grounds for Contesting a Will in Florida

As noted above, a disinherited child must base a will contest on specific legal grounds. Some common grounds for contesting a will in Florida are as follows:

Lack of required formalities: A will must be properly executed in order to be valid. In Florida, a will must be signed by the testator (i.e., the person who makes the will) and witnessed by two witnesses, both of whom must also sign the will. If a will lacks any of these requirements, a party can contest it on grounds that it wasn’t properly drafted, signed, or witnessed. In addition, in order for a will to be validly executed, the testator must sign or acknowledge the will while in the presence of the two witnesses, each of whom must sign the will while in the presence of each other. Often, all that is necessary to determine whether these requirements were met is to review the will and depose relevant witnesses.

Lack of capacity: Under Florida law, a testator must have the requisite mental competency to create a will, to understand the nature of his or her assets, and to understand where and how the assets will be distributed. If a person can prove that a testator lacked capacity, the court has the ability to declare it void. There are many ways to prove a lack of capacity in Florida. For example, a person may do so by demonstrating that the testator had a prior medical diagnosis of Alzheimer’s, dementia, or psychosis. In addition, a party may present witness testimony to the court that demonstrates the testator was behaving irrationally around the time the will was executed.

Undue influence: Undue influence refers to a situation where a testator is coerced or compelled to execute a will due to improper pressure exerted on him or her. Often, this is done by a friend, relative, trusted advisor, or health care worker. In many cases, such influence results in changes to a long-established estate plan where most of the estate was to pass to close relatives of the deceased. Often, undue influencers are new acquaintances or friends who befriend a testator in the last months or years of his or her life, typically after a decline in mental and physical ability. In other cases, a child of the decedent coerces the decedent to write his or her siblings out of the will. In addition, health care workers or aides sometimes threaten to withhold care from a person unless he or she updates a will for the benefit of the health care worker. There are many factors that Florida courts examine when determining whether a will’s beneficiary has exerted undue influence on a testator, including:

  • The beneficiary’s presence at the execution of the will
  • The beneficiary’s presence on occasions when the testator expressed his or her desire to make a will
  • Recommendation by the beneficiary that a particular attorney draft the will
  • Knowledge of the will’s contents by the beneficiary prior to execution
  • Providing of instructions on how to prepare the will by the beneficiary to the attorney drafting the will
  • Securing of witnesses to the will by the beneficiary
  • Safekeeping of the will by the beneficiary prior to the will’s execution

Insane delusion: Insane delusion occurs when a person who makes a will, against all evidence to the contrary, has a false belief and creates or changes his or her will based on the insane delusion. For example, a testator may believe that he or she has been abandoned by a child and disinherits the child as a result. However, if the child visits his or her parent every day, this could result in the will being set aside by the court on a basis of insane delusion.

Fraud: Fraud occurs when a will’s beneficiary causes a testator to make or revise a will based on false information. For example, a child could tell his or her parent lies about a sibling (such as that the sibling engaged in immoral or illegal acts, was convicted of a crime, or said derogatory things about the testator). If a testator executes or amends his or her will based on fraud, the will can be challenged in court via a will contest.

Do I Need a Florida Attorney to Contest a Will?

Although there is no legal requirement that you hire an attorney to represent you when you contest a will, attempting to contest or defend a will in Florida by yourself is often a losing proposition. Protecting the legal rights of a disinherited child in Florida is extremely complicated and requires a deep and thorough knowledge of Florida law to handle effectively. In addition, there are important deadlines you must meet when contesting a will. If you aren’t aware of these deadlines, you run the risk of losing your inheritance. Therefore, whether you need to defend or contest a will, one thing is certain: you need an experienced and knowledgeable Florida attorney on your side.

Contact a Florida Will Contest Attorney Today

At Upchurch Law, experienced attorney Thomas Upchurch will walk you through the will contest process, doing everything possible to ensure that your case is a success. Thomas Upchurch is a seasoned litigator with experience in a variety of different estate and trusts situations, including protecting the legal rights of a disinherited child.

Based in Daytona Beach, Florida, we are proud to provide the highest quality legal counsel to our clients throughout the state. Whether you need assistance with a will issue, undue influence, or another matter, our legal team will work tirelessly to make sure you and your family are taken care of. Our firm understands the difficulties associated with family conflict, so we’ll handle your case with compassion and understanding. Please contact us today to schedule a consultation.

Part of our Guide to Florida Wills

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