Inheritance law usually involves complex situations, such as family disputes, divorce, adopted children, and children born out of wedlock. In this article, you will find out whether an “illegitimate” child has the right to claim his or her inheritance rights in Florida.
Can an Illegitimate Child Claim Inheritance in Florida? – The Essentials
In Florida, there is no legal distinction between a “legitimate” or an “illegitimate” child. Upon the death of a Florida resident, any biological child of the deceased person has the same inheritance rights to the parent’s estate.
Florida Statutes §732.302 provide that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property (…) the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:
- It appears from the will that the omission was intentional, or
- The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will”
Please note that paternity must have been legally confirmed to establish a child’s inheritance rights. Also, parents in Florida are allowed to disinherit adult children if they wish, regardless of whether they were born out of wedlock or not.
Illegitimate Child’s Inheritance Rights in Florida – Reviewing the Decedent’s Will
The first step to determine whether a child born out of wedlock can claim inheritance rights is reviewing the parent’s will. If there are no specific provisions in the father’s will to include a person born out of wedlock among his heirs, he or she might not inherit under the will.
Illegitimate Child’s Inheritance Rights in Florida – Intestacy Laws
When someone dies without a will in Florida, the decedent’s estate is administered under Florida intestacy law.
Statutory intestate succession rules establish that if a person dies intestate and leaves children but no surviving spouse, the children must inherit the entire estate (divided among them into equal shares).
Considering children are automatically considered descendants of their mother, establishing fatherhood is the key element to determine inheritance rights in intestacy cases.
As provided by Florida Statutes §732.108(2), “for the purpose of intestate succession (…), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother’s family.”
Under the law, that person may be considered “a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:
- The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void
- The paternity of the father is established by an adjudication before or after the death of the father (with a few legal exceptions)
- The paternity of the father is acknowledged in writing by the father”
If any of these conditions apply, an individual born out of wedlock is entitled to the same share of his or her father’s intestate estate as if he or she was “legitimate.”