In many families, the family dynamic can include the dramatic elements of one child being the favorite and another child getting cut out of a parent’s will. When a child gets disinherited because of favoritism toward another child or a broken relationship between the disinherited child and the parent, that child often wants to know if they have any legal recourse.
While this sounds like a simple question, there can be different answers, depending on the specific circumstances. A Florida estate planning attorney could help you contest a will or protect your will from getting successfully contested. Let’s take a look at the question, can a disinherited child contest a will in Florida?
The Age of the Child
Under Florida law, a parent has a legal duty to care for all of their minor children. As such, a parent cannot legally disinherit a child who is under the age of 18 in Florida.
Once a child turns 18, however, a parent has no further legal obligation of support. The parent does not have to leave a single dollar to any of their adult children. Therefore, if a parent had a falling out with all of their adult children, the parent could leave their entire estate to charity or another person or organization.
In a situation like this, when a parent disinherits one or more of their adult children, it is best to specify that the parent knew of the existence of the child and intentionally did not provide for the child in the will. Taking that step in the document itself prevents the disinherited adult child from arguing that the parent inadvertently left the child out of the will.
Is the Parent Still Alive?
A person who has legal capacity to make a will has the right to make changes to that will at any moment during their lifetime. The law does not allow people to contest a will of a living person because that individual has the right to change the will. Even though the document might say “Last Will and Testament,” the document does not truly become the person’s last will until they die.
Did Undue Influence Cause the Parent to Disinherit the Child?
A parent has the right to leave their property to whomever they choose once their children reach adulthood, but if the parent disinherited an adult child because of an improper act by another person, like undue influence or duress, a court could overturn the will as not truly expressing the wishes of the parent.
A common scenario is that a parent lives with one of their adult children and leaves everything to that child in the will, to the exclusion of the other adult children. The adult child who inherited everything from the parent when they died will likely explain that the parent did so out of gratitude for that child taking care of them in their twilight years.
The issue arises when the other children claim that the caregiver child exerted improper pressure on the parent to change their will. If the caregiver child took advantage of an elderly parent with dementia or other cognitive challenges, ordered the parent to sign a new will as a condition of continuing to live with the caregiver or receive services from the caregiver, or isolated the elderly parent from the other children or from the parent’s friends, the disinherited children might have an argument of undue influence or duress if they choose to challenge the will.