Congratulations! There’s a new bundle of joy to welcome into your family! Your mind must be full of thoughts, concerns, and plans for this new addition.
One of those concerns may be how you will provide for this child after you pass away. Also, if you executed a will before your baby was born, you may have additional questions.
How does the new kid affect your will? What will happen to your child when you die? Will they receive anything if they are not named in the will? Do you need a new will?
This scenario is called the pretermitted child. Like the pretermitted spouse from a previous article, this scenario occurs when you, first, execute a will and do not provide for your child (because they were not your child yet), then later have children. It is also important to note, this scenario applies to both birthed children and adopted children.
If you read the prior article about new spouses, this may sound familiar, and it should. Both scenarios are based on the same reasoning: Florida does not want you to accidentally disinherit your spouse or child. So, under Florida law, these accidentally disinherited spouses and children will receive something from your estate.
What Happens To Your Will?
Good news! Your will is still valid. The new kid did not and cannot revoke, invalidate, or terminate your existing will. However, just because your will is still effective, doesn’t mean it’s not worth updating your will.
What Will Happen To Your Child?
If this is your scenario, your child may still receive part of your estate. Your child will receive the portion of your estate the child would have received if you never executed a will (their intestate share).
What Will Your Child Receive?
Your child is provided for, but now you may be wondering how much they will receive. Like with almost everything in the law, it depends.
The intestate share your child receives depends on your fact-specific situation. Are you married? Do you have other kids? Are the children from another marriage or relationship? How many children do you have? Have any of your children given you grandchildren and predeceased you?
The questions go on and on. And each question affects how much your child may receive.
Additionally, the pretermitted child statute also has exceptions that will affect whether your child can inherit.
First: The Advancement Exception
Did you give your child a gift (money, watch, car, etc.) which was intended to be an advancement (part of their inheritance given early) before you died?
When you made that gift, did you also include a writing stating it was an advancement, or did your child acknowledge in writing that it was an advancement?
If you answered yes to both questions, then you gave your child an advancement, and, depending on the value of the gift, your child’s intestate share may either be reduced or extinguished.
Second: The Disinheritance Exception
Based on your will, does it seem like you purposely intended to omit your child’s name?
If so, the child will not receive their intestate share.
Again, remember the point of this scenario, of providing for your child even though you did not include them in the will, is to prevent accidental disinheritance. If the disinheritance is not accidental, there’s no need to provide for the children that you meant to disinherit.
Third: The Indirect Gift Exception
Did you have one or more kids when you executed the will?
In your will, did you devise (gift) substantially all the estate to the parent of the pretermitted (omitted) kid?
Is that parent alive and entitled to take the devise (gift)?
If you answered yes to all three questions, this exception is applicable to you, and the pretermitted child may not take an intestate share of your estate. The reasoning behind this is that your will indirectly provides for the pretermitted child through the child’s other parent.
In conclusion, having a new child does not automatically mean you need to execute a new will. However, as this article highlights, whether and how much your child will receive is largely fact dependent. The best course of action is to talk to our attorneys who specialize in estate planning and discuss your options.
This article is written by Florida attorneys and only considers Florida law in place at the time of publication, which was October 30, 2020. This article should not be relied upon as a substitute for legal advice and one should always consult with an attorney in their state before making any legal decisions.
The Estate Plan
135 San Lorenzo Ave Suite #750
Coral Gables, FL 33146