What are My Minor Child’s Inheritance Rights When a Parent Dies After a New Marriage?
Updated: Dec 14, 2020
Divorce, remarriage, and blended families are common today. With blended families, inheritance can be less straight-forward than with a nuclear family. What are a child’s inheritance rights when a parent dies after marrying someone who is not a biological parent?
Last week I spoke with a mother who had questions about a minor child’s inheritance rights. The child’s father passed away, leaving behind the child and a new spouse. The new spouse was appointed executor of the father’s estate, and the child’s mother had questions about protecting the child’s right to inherit under the father’s estate. The first question to ask when considering a minor child’s inheritance rights is whether the parent died with or without a last will and testament.
Did the parent die without a last will and testament?
If the parent died without a last will and testament, the parent is said to have died “intestate.” When someone dies intestate, it means the person’s assets will pass according to state law instead of according to a last will and testament.
Surviving Spouse and a Child from a Previous Relationship:
In Florida, when a parent dies leaving behind a surviving spouse and a child that is not a biological child of the surviving spouse, the surviving spouse will inherit one-half of the intestate property and the child (whether a minor or an adult) will inherit the other one-half of the intestate property. If the parent dies leaving more than one child, the surviving spouse would inherit one-half of the probate estate and the children would divide the remaining one-half of the probate estate equally.
Surviving Spouse, Child with the Surviving Spouse, and Child from a Previous Relationship:
If a parent dies leaving behind a surviving spouse, a child that is a child of the marriage with the surviving spouse, and a child that is a child from a previous relationship, the surviving spouse will inherit one-half of the probate estate and the children would divide the remaining one-half of the probate estate equally.
If a parent dies intestate with a minor child, a surviving spouse, and homestead property that is titled jointly in the parent and the surviving spouse’s names as “tenants in entirety” or “tenants in common,” the homestead property will pass by operation of law to the surviving spouse.
However, if the parent dies with homestead property titled solely in the parent’s name, the surviving spouse will receive a “life estate” in the homestead property, and the child(ren) will receive the “remainder.” That means the surviving spouse would have ownership rights to the property for his or her lifetime. When the spouse dies, the property would pass to the children of the deceased parent.
Did the parent die with a last will and testament?
If a parent dies with a last will and testament, the parent is said to have died “testate.” When someone dies testate, it means the person’s assets will generally pass according to the person’s intentions as set out in the will.
Generally, a minor child will inherit property from a parent who dies testate based on the intentions described in the parent’s last will and testament.
Florida’s constitution protects minor children’s rights regarding homestead property. In Florida, if a parent dies leaving a spouse and a minor child, the parent can only devise a “life estate” in homestead property to the surviving spouse for the rest of the spouse’s lifetime, with a remainder to the minor child(ren).