Sometimes blessings occur when we least expect them, but a lack of planning for such blessings can have unpleasant results. In the recent case of Maher v. Iglikova, a Florida court dealt with the ramifications of an unexpected blessing: the discovery of a previously unknown child.

Mr. Maher executed a will in 2001, but unfortunately disappeared in 2004 and was declared dead some years later. At the time Mr. Maher executed his will, he thought he had one child – a son. Yet, about one year after executing his will, Mr. Maher learned he had another child—a daughter – who was born in 2000. Mr. Maher confirmed that he was the girl’s father and then financially supported her.  But, he never updated his will.  So, after Mr. Maher’s death, a question arose: how does Florida law treat a child born before a will was signed but unknown, until afterwards? Would Florida law provide a way for the daughter to be included in the will?

The Florida legislature has tried to help people take care of children who come into their lives after a will is signed.  Florida law provides that a “pretermitted child”, a child either “born” or “adopted” after a will is made, inherits not under the will but under a statute that entitles the child to share equally with any other children.  Because the daughter was born before the will was made, she argued that her father’s acknowledgment of paternity and financial support legally constituted an “adoption” after the will was made, thus making her a pretermitted child entitled to share equally with the son under the statute.

Unfortunately for the daughter, the Court held that she was not a pretermitted child because Mr. Maher’s acknowledgment, financial support and even a court ruling changing her birth certificate to show Mr. Maher as her father did not amount to “adoption.”  Thus, the daughter lost her claim to share equally in the estate. Worse, the daughter and son suffered collateral damages. Because Mr. Maher failed to update his will once he discovered his daughter, he left open the question of how much inheritance he intended her to have. Thus, the son and daughter ended up suing each other to resolve the question. (And the case went to trial and through an appeal—both costly prospects.)

Mr. Maher could have prevented the wasting of his estate assets and family friction merely by updating his will to clarify his wishes. If you would like to learn more about how we help our clients create estate plans, and  keep them updated, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops. Because adoptions can create different issues in estate planning, we will begin a series of articles on adoptions in our next newsletter.

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