WHO’S YOUR DADDY? Termination of parental rights and adoptions: creating new heirs to inherit estates?

FLORIDA FAMILIES

In today’s society in Florida, families come in all shapes and sizes. We know that divorce and remarriage are common in Florida. Many Florida residents have stepchildren or stepparents. In some cases, a new spouse is much younger than the adult children from their new spouse’s prior relationship. A so-called  Palm Beach marriage.  Some children are   legally adopted.   Some children may be created with DNA after the death of a parent; so-called    posthumously created children.  And in Florida, there is a procedure where a parent can terminate  parental   rights. Although it doesn’t occur every day, parents do sometimes terminate their Florida parental rights and agree that someone else will be their child’s parent.

WHAT DOES THIS MEAN FOR FLORIDA ESTATES?

If we are swapping parents, or children, and our parents change, or, exactly who our children are, is changed,    this can affect your Florida estate plan   and who inherits from your estate or revocable trust. Most Florida revocable trusts, and wills, may have a provision in the Florida will or the revocable trust which leaves money or property to a family member, heirs, descendants, or “issue.” Also, Florida has an estate law known as the ”  intestacy statute.  ” That law tells us who inherits if somebody dies in Florida without a Florida will, or without otherwise giving away their property. If parental rights are being terminated, or adoptions are taking place, you may wonder: who do I inherit a Florida estate from?

WHO DO I INHERIT FROM IN FLORIDA?

We know that nobody has a right to an inheritance in Florida. No entitlement. But many Florida residents  have an expectation of an inheritance. We all know that we generally inherit from our parents. Here are some other points which you may not be aware.

1. An adopted person in Florida is a “descendent” of the adopting parent and may even inherit from that adopting parent’s family
2. An adopted person in Florida is not a descendent of his or her natural parents and he or she may not inherit from a member of the natural parent’s family
3. There are certain exceptions to the above two rules which are found in the Florida probate code, Florida Statues Section 732.108
4. For a parent to terminate parental rights, the parent must comply with Chapter 39 of the Florida statutes, and one of the criteria or grounds for termination of parental rights under Florida statute section 39.806
5. Grandparent visitation rights are found in Florida Statutes Chapter 752
6. Heirs of a deceased Florida resident conceived before his or her death, but born after,  can inherit
7. A natural or adoptive parent can’t inherit from a child if the parental rights were terminated    (Florida Probate Code Section 732.1081 )

DID A GRANDPARENT ADOPT YOU?

Sometimes, a grandchild will be adopted by their grandparents in Florida. And, then again, sometimes a Florida grandparent just takes care of their grandchild because the grandchild’s parent is not in the picture. The grandchild’s parent may be deceased or not involved in the grandchild’s life. In some cases, the grandchild’s other parent may not have a relationship with that child. And so, sometimes, you see grandparents stepping up and adopting their grandchildren as children. Sometimes the grandparent takes custody, and care of the grandchild, but does not adopt the grandchild. In instances like that, it is important for the grandparent to have a good Florida estate plan so that the adopted grandchild, and not necessarily the “bad” or “uninvolved” child, inherits accidentally — such as in the event that the grandparent dies unexpectedly.

Also, if a grandparent wants to leave his or her Florida estate for their grandchild, and the grandchild is a minor, one should consider a trust, or a guardian or custodian account until that minor grandchild becomes an adult. Remember, if you die but you want your grandchild to inherit your wealth, and that grandchild has “bad” or “irresponsible” parents, you want your Florida estate plan to manage your wealth so you don’t throw money in the laps of the wrong people.

FOR ATTORNEYS

What constitutes a “family” in Florida is constantly changing.   Florida residents have multiple marriages and, sometimes, two families — one with, now, adult children from their first marriage and, after divorce, a second family with minor children.  With the US Supreme Court overturning DOMA, gay couples will have inheritance rights and same-sex marriages, even though they are not recognized in Florida right now, will create valuable Florida estate rights one day soon. You may wish to consult part one of chapter 732 of the Florida statutes which deals with intestate succession and adopted persons or chapter 39 of the Florida statutes. Regarding the management of property of a minor, note that Florida often employs a guardian ad litems in legal proceedings to look out for and protect the interests of the minor in any litigation. Finally, chapter 744 of the Florida statutes deals with guardianship law, including guardians of minors, which is addressed in Florida statute section 744.3021.