ASK A LAWYER: PRETERMITTED CHILDREN AND SPOUSES

V. S. of Horseshoe Beach asks:

"My father died a few months ago and I have a question about what I am entitled to inherit from his estate, if anything. He had a Last Will and Testament, but since he made the Will before I was born, I am left out. Also, he married another woman after my mother, his first wife, died, and the new wife isn`t mentioned in the Will, either. To further complicate things, he adopted one of her children from a prior marriage. What rights do my step-mother and I have? And does the adopted child have the same rights I do?"

Dear V.S.:

Thank you for your question. First of all, I`d like to offer my opinion that there are probably hundreds of people out there reading this article who have a Last Will and Testament which was perfectly fine when the Will was originally created, but it no longer reflects the current wishes of the maker of the Will. I wouldn`t be a bit surprised if there are many readers who have Wills which name an EX-spouse as the primary beneficiary, which is undoubtedly NOT the person they`d like to see inherit from them.

I`m going to begin to answer your question by offering this piece of advice regarding Wills: in general, a Will can be changed as often as a person wishes to do so; there is no limit to the number of times it can be changed. So, if you have a Will that is not EXACTLY what you want it to be, then change it.

That said, to answer your specific question, I would tell you that even though you are not named in your father`s Will, you are entitled to inherit from him just as any other child would be entitled to inherit, including the adopted child, PROVIDED there is no expressed intention to exclude you or the adopted child.

You have, undoubtedly, never heard the term "pretermitted heir" before, but that term basically means an heir who was "left out" of a Will. The Florida Legislature passed a law some time ago, which can be found at Florida Statute 732.302, which basically says that a child who is "left out" of a Will which was made before the child was born shall inherit unless it appears that the omission was intentional. The definition of the term pretermitted heir is as follows:

"The term `pretermitted heir` describes a person who would likely stand to inherit under a Will, except that the Testator (the person who created the Will) did not know, or did not know of, the party (the pretermitted heir) at the time the Will was written. The most common category of pretermitted heirs is the child born after the execution of the Will."

The same logic applies to the new wife. Again, the legislature enacted a statute, 732.301, which provides for spouses, not just wives, who became the spouse of the maker of the Will after the Will was created. The statute provides that such persons shall inherit from the deceased person, unless it appears that the omission was intentional or there was a pre-nuptial agreement or a post-nuptial agreement which provides for the spouse.

As can be expected, there are exceptions to the basic "rules" stated above, and surviving spouses have additional rights, even if intentionally excluded, such as the right to an "elective share" of the estate, but that is beyond the scope of your question and this article. And if no children stand to inherit under the Will, then the law cited above cannot be used to create a right which does not otherwise exist. So a child can`t force a parent to leave money or property to the child. Also, children don`t have the same rights as surviving spouses do.

I hope I have answered your question, V. S., and I hope that you are able to use some of the information provided herein to obtain whatever you are rightfully entitled to inherit. Good luck.

Any readers with specific legal questions for this "Ask a Lawyer" column are invited to submit those questions to the Editor of this newspaper who will pass it along to the attorney. If you need assistance with a consumer matter, such as an unfair and deceptive collection practice, or garnishment of wages, a mortgage foreclosure or other such things, and you cannot afford an attorney, call the Legal Services office closest to you, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system, no matter what your income and asset level might be.

The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.