Updated Sept. 2021
Although parents try to do what is best for their children, mistakes sometimes happen. One example is when a parent unintentionally leaves a child out of his or her will. Fortunately, in Florida, when a child is unintentionally left out of a parent’s will, he or she has legal recourse. Florida law allows a child who was unintentionally left out of a will to receive his or her mandatory share of a deceased parent’s estate. In this article, we explain what determines whether a child is a pretermitted heir and examine will contests in Florida. If you believe you were unintentionally left out of your parent’s will, please contact the experienced attorneys at Upchurch Law today for assistance.
What is a Pretermitted Child?
A pretermitted child is a person who is unintentionally left out of his or her parent’s will as opposed to a child who is disinherited via a disinheritance clause in a will. The term also doesn’t refer to a child that a parent knew existed but chose not to include in his or her will, and it doesn’t include a child who was born after a parent executed his or her will.
Specifically, a pretermitted child is a child who was unintentionally or accidently omitted from a parent’s will because the parent didn’t know of the child’s existence. In other words, such a person is a child who is left out of his or her parent’s will because the parent never knew the child existed. To assist those who were mistakenly or unintentionally left out of a parent’s will, Florida allows such individuals to assert that they are pretermitted children and initiate a will contest.
At Upchurch Law, we routinely handle will contest cases, and we have experience in cases involving the inheritance rights of children. One example of a case we handled involved two individuals who came to us for assistance after their mother passed away unexpectedly, and they realized she accidentally left them out of both her will and trust. Both children were adopted after their mother created her will and trust, and she never went back and updated it accordingly. The mother had no natural children but was survived by several sisters. In this case, the mother’s estate was worth approximately $3.5 million, and the children wanted their rightful share of their inheritance. In order to determine if they should proceed, I had to determine if they were pretermitted.
Common Reasons for Omitted Heirs
Disinheriting a child via a disinheritance clause in a will is perfectly legal in Florida. Therefore, when claiming to be pretermitted, it is necessary to prove that the omission was unintentional. There are many reasons that people omit children and other heirs from their wills. Common reasons that people omit heirs from their wills include:
- Change in marital status, such as divorce
- Medical or health status
- Lack of need
- Increased need
- Previous support or gifts already provided
However, as noted above, there are also times that heirs are unintentionally omitted from a will. For example, a person may begin the estate planning process only to forget about or never update it. In addition, an omitted heir may be the result of a person passing away before he or she has the opportunity to update his or her will. Regardless of the reason, a child who is unintentionally left out of a parent’s will may have legal recourse.
Omitted Child in a Will
If a pretermitted heir is a child, Florida law provides guidance on how to address the situation during probate. Section 732.302, Florida Statutes, which is the law that addresses such matters, applies in situations involving a child who was born or adopted after his or her parent’s will was drafted and was omitted from the will. Pursuant to the statute, a child who is omitted from a will is entitled to a portion of his or her parent’s estate in certain cases. Unless one of the following circumstances applies, a child who is omitted from a will may claim a portion of his or her parent’s estate:
- The child was disinherited via a disinheritance clause in a will.
- The testator already had children when his or her will was drafted and left most of the estate to the other parent. In this situation, if the other parent is living, he or she is entitled to inherit the estate pursuant to the terms outlined in the will.
- The child has already received an advance that is the equivalent of his or her share of the estate. For example, this would apply if gifts that were made by the testator to the child were intended to serve as an inheritance advance.
If it is determined that a child was unintentionally omitted from a parent’s will, the court will award the child the equivalent of whatever he or she would receive as an intestate share. In other words, the child will receive whatever he or she would have received under Florida’s intestate laws had the parent died without a will. In addition, a child’s share of a parent’s estate can vary based on his or her individual circumstances. For example, a child’s share of an estate can be affected by whether there is a surviving spouse and whether the spouse is the other parent of the child.
Frequently Asked Questions
What is the difference between pretermitted and disinherited?
A child who is pretermitted is one who is unintentionally omitted from a parent’s will. A disinherited child, however, is a child who is intentionally omitted from a parent’s will. In order to disinherit a child, a parent must do so via a disinheritance clause in a will. A disinherited child has no rights to a parent’s estate. However, if certain grounds are present, a disinherited child may be able to contest a parent’s will and obtain a share of his or her parent’s estate.
How do I prove I was unintentionally omitted from my parent’s will?
In some cases, it is obvious that a child is pretermitted. In other situations, however, it must be proven that a person is the decedent’s child, and the decedent was unaware of the child’s existence. Regardless, both situations require the assistance of an experienced will contest attorney. Working with a knowledgeable will contest attorney is the most effective way to successfully contest a parent’s will.
What are pretermitted heirs entitled to?
A person who successfully demonstrates in court that he or she was unintentionally omitted from a parent’s will is entitled to a share of the parent’s estate. Specifically, a child who is unintentionally omitted from a parent’s will is entitled to receive the equivalent of his or her intestate share of the parent’s estate. However, when determining what such a child is entitled to, there are a few things to keep in mind. First, if the child was given part of his or her parent’s property that is equal to the value of his or her share of the estate, the court will not give the child an additional share. Second, if the deceased parent left substantially all of his or her property to the child’s other parent, the court will not give the child any share of the estate. Third, if the omission was clearly intentional based on the language of the will, the child will not receive any share of his or her parent’s estate.
Do I need a Florida will contest attorney?
Handling a will contest on your own can be extremely difficult. Therefore, if you were unintentionally omitted from your parent’s will, you should contact a Florida will contest lawyer as soon as possible. At Upchurch Law, attorney Thomas Upchurch uses his strong background in will contests to help clients obtain what is rightfully theirs. Mr. Upchurch is an experienced Florida probate attorney and dedicates his practice to ensuring that his clients receive excellent advice and assistance in dealing with their legal matters.
Contact a Florida Will Contest Attorney Today
If you are a pretermitted heir, you need an experienced Florida will contest attorney on your side. At Upchurch Law, experienced attorney Thomas Upchurch will walk you through the will contest process and take the steps necessary to ensure that your will contest case has a successful resolution.
Thomas Upchurch is a seasoned litigator with experience in several areas of the law, giving him the knowledge and skills necessary to handle your will contest case. Based in Daytona Beach, Florida, Upchurch Law is proud to provide high-quality legal counsel to clients throughout the state of Florida. Whether you need assistance with a will contest or some other probate or estate planning matter, our legal team is here to ensure that you and your family obtain the compensation you deserve. In addition, our firm understands the emotions involved in family issues, so we vow to handle your case with the utmost compassion and understanding. Please contact us today to schedule a consultation.
Part of our Guide to Florida Wills series
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