The loss of a loved one often causes tension among the family members left to cope with the loss. Such tension tends to escalate when the surviving spouse is a stepparent of the decedent’s children. Even if prior to such death the entire blended family got along great, the death of a spouse in a blended family more often than not creates a potential for high level of conflict. For instance, inheritance disputes tend to be uglier, more hurtful and bitter in a blended family setting than in a traditional nuclear family one. Although no one can foolproof a family from an intra-family feud upon a passing of a loved one, there are certain steps that the surviving family members may take to reduce the chance of conflict. The first step would be to step back and determine what assets were actually left by the decedent and whether the decedent left a will or died intestate.
Quite often the surviving spouse gets the majority, if not all of the assets, unless the will states otherwise.
Certain assets such as bank accounts, life insurance policies, brokerage accounts, IRAs and other financial accounts pass by operation of law to either a designated beneficiary or the remaining owner, if the account was held by the decedent jointly with someone else.
Also, if real estate was owned together with someone else as joint tenants with right of survivorship, then that property would likewise pass to the remaining owner. These types of assets are considered non-probate assets as they pass directly to the designee or the remaining owner.
It is important to note that where these same type of assets are left in the decedent’s name alone without any beneficiary designation, then under these circumstances, the accounts would become probate assets subject to either formal or summary administration.
Homestead property is treated differently in Florida from other real estate. If the homestead property was titled in the decedent’s name alone, then the surviving spouse would receive a life estate in that property. After the death of the surviving spouse, such homestead property would then revert back to the decedent’s descendants. So if the surviving spouse was the stepparent of the decedent’s children, the decedent’s children would then eventually own this homestead property upon the stepparent’s death. The stepparent’s own children from a different relationship would not inherit the property.
Therefore, how assets of the decedent are held or titled is important. For example, even if the decedent had a will, but the intended conveyance of a certain asset, such as funds in a certain bank account, contradicts how the account is actually titled, then in this case, title would control and trump any contrary will provision. In other words, if the decedent named his oldest child as the beneficiary of the bank account but the bank account was owned by the decedent jointly with his or her spouse, then it would be the spouse, as the remaining owner of the account, who would be entitled to all the funds and not the decedent’s oldest child.
The same concept will apply to a jointly owned real property. Even if per the decedent’s will a certain non-homestead piece of real property was devised to the decedent’s sister but the deed indicates that the property was owned by the decedent jointly with his or her youngest son, that property would pass by operation of law to the decedent’s youngest son and not the sister.
Apart from dealing with a surviving stepparent, the family may also be dealing with the decedent’s adopted child. Where the decedent is survived by an adopted child, it is not surprising to find the biological children questioning the adopted child’s claim to their parent’s estate. However, if the decedent legally adopted the child, then that child has the same rights to the decedent’s estate as the biological children. In Florida, adopted children are treated the same as children born to their parents.
For inheritance purposes, the Florida Probate Code provides that “[f]or 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” See Section 732.108, Florida Statutes (2014).
In other words, the adopted children are the lineal descendants of their adoptive parent(s). Apart from certain exceptions, adoption generally cuts all the ties between the adoptee and his or her biological family so that the adoptee no longer has the right to inherit from his or her birth parents or their families and vice versa. The adopted children may inherit from their adoptive family and vice versa.
Finally, if the decedent died without a will or intestate and is survived by a spouse, then Florida’s intestacy laws would provide how much the surviving spouse is entitled to inherit from the decedent’s estate. Pursuant to Section 732.102 of the Florida Probate Code, “[t]he intestate share of the surviving spouse is:
(1) [i]f there is no surviving descendant of the decedent, the entire intestate estate.
(2) [i]f the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) [i]f there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) [i]f there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.”
Section 732.102, Florida Statutes (2014).
Consequently, rather than open up old wounds and rush to judgment, the entire family should take time to properly grieve and work together to evaluate all the assets left by the decedent and then take the necessary steps to properly transfer those assets to the rightful owner and otherwise settle the decedent’s final affairs in a timely and efficient manner.
Depending on the specific circumstances of a given case, the asset transfer process can be relatively simple or it can be a lengthy and costly procedure. A consultation with and retention of an attorney sooner rather than later after the decedent’s passing would ensure that the decedent’s final affairs are properly addressed and concluded and would also allow the family to focus on healing. After all, having an attorney help you navigate through the maze of the probate process in a cost-efficient and thoughtful manner would benefit all the parties involved and would increase the likelihood of the family either remaining or becoming a cohesive unit.