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Can I Disinherit My Child?

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Yes—in some situations. It all depends on how old your child is. Under Florida law, you can certainly disinherit your adult children. However, certain rules prevent you from completely disinheriting minor children.

Florida’s Homestead Laws

 The state’s constitution contains homestead laws that limit what you can do with your residence. In particular, you cannot leave the residence to someone other than a surviving spouse or minor children. If you do, the laws will prohibit you from making the gift of your residence. The property will first go to your surviving spouse for life and then to any minor children.

However, if your children are of age, then Florida’s homestead laws do not prevent you from leaving the property to someone other than them.

Pretermitted Children

 Some children are born or adopted after you have created your will. In this situation, the law will not assume that you intended to cut the child out of your estate plan entirely. Instead, your child will be allowed to take a share of your estate even though they are not provided for in the will.

Of course, you might not have updated your will because you did not want your child to take anything from your estate. If not, then you should meet with your estate planning attorney to update the will. You can amend your will.

Make Your Will Clear

The last thing you want is for an angry child to initiate a will contest. Disappointed children and their lawyers will seize on any ambiguity or vagueness in the will and argue that you did not really intend to disinherit them. For these reasons, you should explicitly state that you are disinheriting your child and then use their full legal name.

You also might want to speak with your children, especially if you have legitimate reasons for disinheriting them. For example, parents disinherit children for a variety of reasons:

  • One child might have shown themselves as a spendthrift and you are afraid of assets being wasted.
  • One child might have fallen on hard times through no fault of their own and need more assets.
  • Your assets might primarily consist of assets in a family business, and one child has worked for the business.
  • You might leave substantial assets through life insurance or retirement policies to one child and therefore not need to leave them anything in a will.

Of course, you might also have disinherited your adult child because you do not have any sort of relationship after growing apart. Whatever your reason, talking to your children before you die might take some of the sting out of being disinherited and could potentially ward off a will contest. If you feel uncomfortable meeting face-to-face, you can write them a letter.

Seek the Help of an Elder Law Attorney

At the Millhorn Elder Law Planning Group in The Villages, our attorneys work closely with all of our clients to create an estate plan that reflects their wishes. We will review any estate planning documents you currently have and make legally-effective amendments. Please contact us today with any questions.

Resources:

flsenate.gov/Laws/Constitution#A10S04

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.302.html

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