How Florida Probate Affects Adopted Children
By: Barry E. Haimo, Esq.
April 28, 2022
In the state of Florida, the estate of anyone who dies without a will is subject to probate. And even if the deceased had a will and had assets in their name without a designated beneficiary (think pay on death or transfer in death accounts), probate proceedings should also be expected.
So how does the probate process affect adopted children in Florida? Can they inherit from their biological parents in addition to their adopted parents?
The answers are laid out in Florida Statute 732.108. Let’s take a closer look.
Probate in Florida
First, it’s important to understand the probate process. Most assets in estates without a will or named beneficiaries will be subject to probate in the state of Florida.
And, unfortunately, the probate process can be long and arduous, stretching out months or even over a year. The more complex the estate or disputes, the longer the probate process.
Almost all probate proceedings fall under formal or summary administration and require legal counsel. Very few estates that go through probate will be eligible for disposition without administration. And in the case of adopted children and inheritance, it is wise to have the services of a lawyer who specializes in probate in Florida statutes.
Adopted Children and Inheritance in Florida
Under Florida law, adoption is recognized as official family. It legally severs ties with the biological family.
This means adopted children have the same inheritance rights as biological children within the same family in regards to intestacy and probate. But Florida law does not provide foster children the same rights as biological or adopted children.
Adopted persons and persons born out of wedlock are subject to the following guidelines in the probate courts according to Statute 732.108:
(1) For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent’s family or any prior adoptive parent’s family, except that:
(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent’s family.
(b) Adoption of a child by a natural parent’s spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.
(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents.
(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother’s family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.
(c) The paternity of the father is acknowledged in writing by the father.
Are you an adoptive parent planning your estate? Ensure your children have access to your assets and aren’t left to wade through messy probate proceedings. Haimo Law specializes in estate planning and probate and helps you leave your legacy in good hands.
The alternative can mean significant taxes, chaos, court, costs, conflict, and a host of unpleasant surprises for your loved ones. Call us to get started today at 954-228-3369.
Barry E. Haimo, Esq.
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