Pretermitted Heirs in Florida

A pretermitted heir is a child who was born or adopted after a parent executed their will and who is not otherwise provided for in the will or by other means. Florida's pretermitted heir statute, F.S. § 732.302, is designed to protect these after-born or after-adopted children from unintentional disinheritance. When the statute applies, the pretermitted child is entitled to receive a share of the parent's estate as if the parent had died without a will.

What Does F.S. § 732.302 Provide?

Florida Statutes § 732.302 states that when a testator fails to provide in the will for a child born or adopted after the will is executed, the after-born or after-adopted child receives 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. If the will contains language indicating the testator intentionally excluded future children, the pretermitted heir statute does not apply.
The testator provided for the child by transfer outside the will. If the testator made provisions for the child through a trust, life insurance policy, or other non-probate transfer, and the intent that the transfer be in lieu of a testamentary provision is reasonably apparent, the child is not treated as pretermitted.
The testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the pretermitted child. This exception recognizes that if the testator left everything to the child's other parent, the child's needs are presumably addressed through that parent.

Who Qualifies as a Pretermitted Heir?

To qualify as a pretermitted heir under Florida law, the child must meet the following criteria:

Born or adopted after the will was executed. Children who were alive when the will was signed are not pretermitted, even if they are not mentioned in the will. The statute only applies to children who came into existence after the will was created.
Not provided for in the will. If the will includes a provision for the child, even a token amount, the child is not pretermitted. However, the provision must specifically address the child; a generic residuary clause leaving everything to “my children” may or may not be sufficient depending on the circumstances.
Not provided for by transfer outside the will. If the parent established a trust, purchased life insurance, or made other arrangements for the child's benefit, and the intent that those arrangements replace a testamentary gift is reasonably apparent, the child does not qualify.

The statute applies to both biological and adopted children. It does not apply to stepchildren who have not been legally adopted.

How Is the Pretermitted Heir's Share Calculated?

When the pretermitted heir statute applies, the child receives a share of the estate equal to what they would have received under Florida's intestacy statutes. The calculation depends on the family structure:

If the Decedent Had No Surviving Spouse

The estate is divided equally among the decedent's descendants. If the decedent had three children (including the pretermitted child), each child would receive one-third of the intestate estate.

If the Decedent Had a Surviving Spouse

Under F.S. § 732.102, if all of the decedent's descendants are also descendants of the surviving spouse and the spouse has no other descendants, the surviving spouse receives the entire intestate estate — which would leave the pretermitted child with nothing under intestacy. However, if the decedent has descendants from a prior relationship, the surviving spouse receives one-half of the intestate estate and the descendants share the other half.

Source of the Pretermitted Share

The pretermitted child's share is paid from the estate in the following order of priority under F.S. § 732.302:

First, from the portion of the estate not devised to the other parent of the pretermitted child (if the other parent is a beneficiary under the will)
If that is insufficient, from all beneficiaries of the will in proportion to their shares

This means that the pretermitted child's share effectively reduces what other beneficiaries receive under the will.

Common Scenarios Involving Pretermitted Heirs

Second Marriage with Children from Both Marriages

A common scenario arises when a parent executes a will during their first marriage, naming their existing children as beneficiaries. They later remarry and have additional children but never update the will. The children from the second marriage, born after the will was executed, may qualify as pretermitted heirs and claim a share of the estate, potentially reducing what the children from the first marriage receive.

Will Drafted Before First Child

If a person executes a will before having any children — perhaps leaving everything to a spouse, sibling, or charity — and later has children without updating the will, all of those children may qualify as pretermitted heirs. This can dramatically alter the estate distribution.

Adopted Children

A child adopted after the will was executed has the same rights as a biological child under the pretermitted heir statute. If a parent adopts a child but does not update their will to include the adopted child, the adopted child may claim a pretermitted share.

Pretermitted Heirs and Trusts

Florida's pretermitted heir statute, F.S. § 732.302, applies specifically to wills. It does not directly apply to revocable living trusts. This is an important distinction because many Floridians use trusts as their primary estate planning vehicle.

If a parent's assets are held in a trust rather than passing through a will, a child born after the trust was created does not have an automatic right to a share under the pretermitted heir statute. However, a trust can be challenged on other grounds, such as lack of capacity or undue influence, and the omission of a child may be relevant evidence in such a challenge.

To avoid any potential disputes, parents who use trusts should update their trust documents after each child is born or adopted, just as they would update a will.

How to Prevent Unintended Inheritance by Pretermitted Heirs

If you want to ensure that the pretermitted heir statute does not disrupt your estate plan, consider the following steps:

Update your will after each child is born or adopted. This is the simplest and most effective way to prevent pretermitted heir issues. By specifically naming each child and stating what they should (or should not) receive, you eliminate any argument that the omission was unintentional.
Include forward-looking language in the will. A well-drafted will can include a provision that addresses future-born children, such as: “I have intentionally made no provision for any children born or adopted after the execution of this will.” This language demonstrates that the omission of future children was deliberate, not accidental.
Use a revocable trust. Because the pretermitted heir statute applies to wills but not trusts, holding assets in a revocable living trust can help avoid the issue. However, the trust should still be updated after each child is born or adopted.
Make non-probate provisions. If you want to provide for a child outside of your will, doing so through a trust, life insurance policy, or other non-probate transfer — and documenting your intent that the transfer replace a testamentary gift — can satisfy one of the exceptions to the pretermitted heir statute.
Review your estate plan regularly. Major life events, including the birth or adoption of a child, marriage, divorce, and significant changes in assets, should trigger a review of your estate plan.

Pretermitted Heirs vs. Intentional Disinheritance

It is important to distinguish between a pretermitted heir and a child who has been intentionally disinherited. A pretermitted heir is a child the testator likely did not consider when drafting the will because the child did not yet exist. An intentionally disinherited child is one the testator knowingly excluded.

The pretermitted heir statute is a safety net for the former situation. It assumes that a parent who executed a will before a child was born would have wanted to provide for that child. If the parent actually intended to exclude future children, the will must clearly say so.

Contact a Florida Pretermitted Heir Attorney

Whether you are a child who may qualify as a pretermitted heir, an executor dealing with a pretermitted heir claim, or a parent who wants to ensure your estate plan properly addresses future children, the attorneys at Law Offices of Albert Goodwin, PA can provide the guidance you need. We handle pretermitted heir cases and estate planning matters throughout South Florida.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.