Just because one is the biological child of a decedent does not necessarily in and of itself entitle that child rights to stake a claim on their mother or father’s estate.

No one is under any legal option to leave adult children – or anyone else – anything from their estate. Minor children are handled differently under the law, as the state recognizes they are entitled to a certain degree of support that might otherwise have been given had the decedent lived. But there is no guarantee of the same kind of expectation for children over the age of 18.

This is where an experienced probate litigation attorney should be called in, to examine whether there was a will or trust and if so, what the language of that document indicates. If these documents exist but there is no specific mention of a child – estranged or otherwise – or indication the parent intended to leave that person out of the will, that child may have the basis to pursue probate litigation to plausibly assert the conceivable allegation that the parent simply “forgot” about them.

An attorney can help you determine whether these documents exist and where they might be located. Wills are usually public records, filed in the jurisdiction where the subject had permanent residence. Trusts, meanwhile, are not considered available to the public, but there is still most likely a notice of trust that was filed to indicate its existence.

There are a few reasons why someone may wish to disinherit their child. One is that they may feel a certain child is more financially secure than the others. Another reason may be that the parent and child are estranged. In either case, it’s generally advisable to proceed with caution when you do this because it often leads to interpersonal bitterness and legal battles.

There are some instances wherein a person cannot write another of their will. Typically, these cases involve minor children (those under 18) or spouses. In general, a spouse is entitled to an elective share of decedent spouse’s estate, assuming the will was created after marriage. The elective estate includes property and other assets subject to probate laws, as well as some non-probate assets, such as those in a trust. A prenuptial or post-nuptial agreement could effect this. Similarly, if a person dies with a will that was created prior to marriage, the spouse is considered “pretermitted,” meaning their rights will be the same as if the spouse had died without a will, meaning the spouse receives the entire estate if decedent died with no children or only children the two shared, or to 50 percent if decedent had surviving children with someone other than surviving spouse – unless those children were adults and decedent specifically wrote them out of the will.

Minor children who are disinherited are still entitled to receive whatever they might have under state law had their parent not had a will. The same goes for children born after a will was drafted.

If an adult child who was disinherited seeks to challenge the will’s validity, they may argue they were excluded because of:

• Undue influence
• Lack of testamentary capacity
• Improper execution

It should be noted that the small size of one’s estate does not leave it immune to challenges. We can help with both estate planning and probate litigation in Broward County.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Estate Planning Mistakes Every Boomer Should Avoid, March 6, 2016, By Casey Dowd, FOX Business

More Blog Entries:

Broadcaster Excludes Adult Children From Will, Leading to Ugly Public Spat, March 25, 2018, Broward Probate Litigation Attorney Blog