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Stepchildren vs. Stepparents

Stepchildren v. Stepparent– Florida Estate & Inheritance Lawsuits Between Adult Children & Mom or Dad’s Last Spouse

How can a 2nd or 3rd spouse protect themselves from their mean adult stepchildren when it comes to money and Florida inheritances? Or, consider this “super-growth” area of Florida probate litigation: how can adult children of a wealthy parent, protect their Florida inheritance from their parent’s greedy 2nd wife, or the avarice of a 3rd husband, or last spouse? And when you have a few bucks, that creates the likelihood that one’s children from a prior marriage or relationship may not get along with a parent’s last spouse. If you recognize these facts, you will realize this is not a reality show, or a made up scenario for a website trying to get more clients. This is real probate litigation in Florida which the Pankauski Hauser law firm in West Palm Beach deals with, literally, each day. 2nd and 3rd marriages are common, from Miami to Stuart and Boca Raton to Palm Beach Gardens. Our trial attorneys negotiate hard, push hard, and litigate aggressively, helping families each and every day with the monetary, and family, issues which they face. If a spouse or parent passes away or becomes incapacitated and in need of a guardianship in Florida: are you protected? Who’s on your legal team and are they tough enough?

Special circumstances can arise under Florida probate practice involving step parents and step-children. This is in part because, under the law, intestacy controls the dissent of one’s assets upon their death without a will. While that is very general, as things such as life insurance policies, bank and other financial accounts, and other investments, can be designated pay on death (and thus pass outside of the decedent’s estate). Many people employ estate planning documents such as wills and/or trust to devise their estate. Yet, many estate planners from Boca Raton to Palm Beach also recommend the simplicity of joint tenancy and co ownership. This can cause problems if there is are step children or a 2nd spouse.

An interesting case arose in 2010 from Volusia County, Florida. In the case of Timmons v. Ingrahm, 36 So. 3d 861 (Fla. 5th DCA) the decedent was married as of his death; he had twoadopted children from a previous marriage and his surviving spouse had four children, none of whom were ever adopted by the decedent.

Through his will the decedent had two trusts, a family trust and a marital trust. The marital trust had the larger portion of decedent’s estate and the surviving spouse was the sole income beneficiary of both trusts during her life. The marital trust provided that upon the surviving spouse’s death, the marital trusts’ remaining principal (after payment of estate taxes) would pour over into the family trust and be distributed pursuant to its terms.

The family trust provided that upon the surviving spouse’s death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.” Id. at 863. The decedent’s will defined children to include the children of the surviving spouse; however, the surviving spouse during her life attempted to use a limited power of appointment the family trust to disinherit decedent’s two adopted children. The applicable provision of the limited power of appointment read:

[M]y said wife shall have the further limited power at any time during her lifetime to appoint by specific reference to this power in an instrument in writing executed and delivered to the Trustee all or any part of the principal of this trust, free and clear of any trust to and among my then living lineal descendants in such proportions and subject to such trust and conditions as she may direct. This limited power of attorney may be exercised by said wife even to the point of completely exhausting the entire corpus trust of this trust estate. Id.

The surviving spouse sought to grant all of the principal of the family trust, then in existence or coming into the trust later, to her four natural children by executing an “Exercise of Limited Power of Appointment” that read in pertinent part:

Pursuant to the provisions of this limited power of appointment, it is the intent of this writing to exercise said power, which is executed by me and I hereby direct pursuant to the limited power of appointment that all principal and income of said trust now in existence or becoming a part of such trust as the result of my death as a pour over from the Marital Trust C or the Marital Trust A be distributed, per stirpes, among the natural children and their lineal descendants, of Myrtle C. Timmons Ingrahm free from further trust and outright.

The effect of the exercise of this limited power of appointment shall be that the only beneficiaries of the Timmons Family Trust shall be my natural children and their lineal descendants. I understand that this exercise of limited power of appoint [sic] disinherits Frank G. Timmons, Jr., and his lineal descendants, and Jacquelyn Forman and their lineal descendants and that is my intent. Id.

In finding the limited power of appointment by the surviving spouse in favor of her natural children invalid, the appellate court reasoned:

In determining the intent of the settlor, a technical term used in a trust instrument should be accorded its legal definition, unless obviously used by the settlor in a different sense. Knauer v. Barnett, 360 So.2d 399, 406 (Fla.1978). “Lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” It includes children, grandchildren, or more remote descendants but excludes collateral heirs. § 731.201(9), Fla. Stat. (2007). Adopted children come within the definition of lineal descendants. Lewis v. Green, 389 So.2d 235, 241 (Fla. 5th DCA 1980).The co-trustees acknowledge that step-children do not ordinarily fall within the definition of “lineal descendants,” but contend that by expressly expanding the definition of “children” to include his step-children for purposes of his will, Frank Sr. similarly intended to expand the definition of “lineal descendants” to include his step-children and their descendants.” We reject this argument.

While Frank Sr.’s will expressly provided for a different definition of the term “children” than its common or legal definition, no similar attempt was made to modify the common or legal definition of the term “lineal descendants.” The lack of an attempt to redefine “lineal descendant” reflects an intent to have the term interpreted in accordance with its legal definition. Furthermore, Frank Sr. used the term “lineal descendants” on only two other occasions in his will. In one paragraph, Frank Sr. bequested his personal property, in the event Myrtle predeceased him, “to my children who survive me, or if none of my children survive me, then to their lineal descendants, per stirpes.” In a different paragraph, Frank Sr. bequested certain shares of stock “to my son Frank Timmons, Jr., or his lineal descendants per stirpes.” Thus, in both of these instances, the term “lineal descendants” was used in a manner consistent with its legal definition. Finally, there is no language elsewhere in the will reflecting an intent on the part of Frank Sr. to grant Myrtle the power to disinherit his children in favor of her own children.

Id. at 864.

As evidenced by the Timmons case, unique circumstances can arise when dealing with stepchildren and stepparents. Should you have questions or concerns regarding your interest in the estate of a step parent or step child, consider consulting with an experienced probate litigation attorney in Florida who is tough and aggressive. No whimpy probate lawyers !

Florida Will Contests:Do Prior Beneficiaries Have the Right to Sue to Revoke Probate? >

Florida Estates and Timely Creditor Claims >

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