Omitted or Pretermitted Children Under Wills in Florida
At a glance
| Will and child covered | Child omitted from provision by the testator's will (§ 732.302). |
|---|---|
| Birth or adoption timing | Born or adopted after the will was made (§ 732.302). |
| Naming and provision test | Testator omitted to provide by will; § 732.302 gives no separate nominal-gift or class-reference test. |
| Intentional omission | No share if intentional omission appears from the will (§ 732.302(1)). |
| Other-parent gifts | No share if testator already had children, devised substantially all to child's other parent, and that parent survives and takes (§ 732.302(2)). |
| Outside gifts and advancements | Equivalent child's part received by advancement defeats share; § 732.302 states no general outside-will death-benefit test. |
| Baseline statutory share | Estate share equal in value to child's intestate share (§ 732.302). |
| Effect of gifts to existing children | Existing child matters to the other-parent exception; no separate sharing-only-existing-child-gifts formula (§ 732.302). |
| Property source and abatement | Use designated will funds first, then intestacy property, residue, general, and specific devises under statutory abatement order (§§ 732.302, 733.805(1)). |
| Trust and nonprobate reach | § 732.302 measures an estate share and refers its source to § 733.805; no separate trust or beneficiary-designation formula there. |
Requirements one by one
Covered child and exceptions
§ 732.302 covers a testator's child born or adopted after making the will for whom the will omits provision. The child does not receive this share if an advancement already gave the child property equivalent to a child's part. The statute also withholds the share when intentional omission appears from the will.
The other-parent exception has three linked conditions in § 732.302(2): the testator had at least one child when the will was executed, devised substantially all the estate to the omitted child's other parent, and that parent survived the testator and is entitled to take under the will.
Share and property source
If the rule applies, § 732.302 measures the child's estate share by what the child would have received had the testator died intestate. It does not create a separate formula limited to will gifts for children already living at execution. The share is raised under § 733.805. That section uses any will-designated fund first; otherwise it orders estate property passing by intestacy, residuary devises, property not specifically or demonstratively devised, then specific or demonstrative devises. It also sets same-class ratable abatement, with stated protections for certain spouse and consideration-backed devises.
What trips people up
The other-parent exception is conditional: a devise to that parent alone does not satisfy § 732.302(2) unless the parent survives and takes, and the testator already had a child when the will was signed. The advancement test asks whether the child received an equivalent child's part, rather than whether the testator made any lifetime gift at all (§ 732.302).
Common questions
Can evidence outside the will alone show intentional omission? The exception in § 732.302(1) says the omission must appear intentional from the will.
Does a small or nominal will gift necessarily count as provision? Section 732.302 asks whether the will provides for the child, but does not state a separate nominal-gift test. The meaning of a particular gift requires reading the instrument.
Does the statute order a separate trust to pay this share? Section 732.302 calls for an estate share and sends its funding to § 733.805; those provisions do not set a separate beneficiary-designation or trust-payment formula.
Statutes and sources
- Fla. Stat. §§ 732.302 and 733.805. Verbatim official excerpts, chapter URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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