This is a case of a minor child born out of wedlock and her Florida probate rights to inherit from the estate of her father, who disappeared. If you are the parent of a child whose father just disappeared, your child may be able to inherit if the father is presumed dead by a Florida Probate Court. If a minor child is left out of the last will in Florida, the minor child may also be able to inherit. It depends on whether the child is a pretermitted child (left out child) under the Florida Probate Code. You will want to read this April 9, 2014 Florida Probate Code opinion from an appeal in Florida’s 3rd District Court of Appeal.
Florida Probates for People Who Disappear
- James, a Florida resident, disappeared
- A petition in a Florida probate court was filed asking the probate court judge to declare that James was missing and was presumed dead
- A Florida Probate was opened up
- December 1, 2009: James’ last will dated July 11, 2001 was admitted to probate
James Had 2 Families – paternity test
- James fathered two children during his lifetime: a son, born in 1999, of whom Lyudmila is the legal guardian & also a daughter born in 2000
- James’ daughter’s mother = Olga
- James did not know about Olga’s daughter until either June or July of 2002
- 2002 or 2003: paternity confirmed
Children & Heirs Fight Over Florida Will & Probate
- Lyudmila is the guardian of her son, a minor & a beneficiary of James’ Florida Estate
- July 13, 2010: Olga filed a Petition with the Florida Probate Court regarding a Pretermitted Child
- She also filed a Challenge to the Florida Will & a Petition to Determine Beneficiaries of the estate
- Lyudmila filed a motion for summary judgment in the Florida Probate
- Claiming that Olga’s daughter was not a pretermitted child under section 732 .302 of the Florida Probate Code because James’ daughter was not omitted from the will—- she was included in a class gift for James’ children (But note: evidently, James did not learn about his daughter until after he executed the 2001 will).
- The probate court agreed that Olga’s and James’ daughter was a pretermitted child (left out child) under the Florida Probate Court & inherited from the estate
- Lyudmila appealed that Florida Probate Court’s order that his daugther was a pretermitted child (left out child) under the Florida Probate Code
- The appeals court heard this Florida probate appeal & reversed the Probate Court Judge because Olda’s daughter was not a pretermitted child
Florida Law on Minor Children Who Are Not in the Will
- There are 3 elements that must be satisfied for a child to be 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. § 732.302, Florida Probate Code.