June 14, 2022
In Florida, a child who is born or adopted after their parent is called a “pretermitted child” and can inherit from their parent’s estate, as set forth in Fla. Stat. §732.302:
732.302 Pretermitted children.—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 equivalent to a child’s part by way of advancement, 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.
The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805.
The Third District Court of Appeal summarized the factors or elements which must be satisfied for a child to be deemed pretermitted: “The child must be: (1) omitted from the will, (2) born or adopted after the making of the will, and (3) have not received a part of the testator’s property equivalent to a child’s part by way of advancement.” Estate of Maher v. Iglikova, 138 So. 3d 484, 485 (Fla. 3d DCA 2014).
In its examination of an unusual set of facts, the Maher court compared the concepts of an adjudication of paternity, being adopted, and being a pretermitted child. The Third District reasoned that an adjudication of paternity acknowledges an existing relationship, that adoption under Fla. Stat. §63.032(3) creates a legal relationship between a parent and child where one did not exist, and pretermitted merely means “omitted”. Id. The pretermitted child in Maher was omitted, she was born after the execution of the will at issue in that case, and just because the decedent learned of the child’s birth later, after having signed his will, was not the same as an adoption. Id.
Another case examining the pretermitted child concepts was also in the Third District Court of Appeal, Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991). In Azcunce, the court determined that if the testator had wished to provide for the child who was omitted, he would have done so in the second codicil to his will, as she had been born at the time same was executed. Id. at 1218. As he did not, she was disinherited. Id.
“The purpose of [Fla. Stat. 732.302] is to avoid an unintentional or inadvertent disinheritance of a child.” J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. 1st DCA 1983)(Citing In re Hatfield’s Estate, 153 Fla. 817, 16 So.2d 57, 59 (1943)).