We now arrive at our second way point in our journey through the maze of estate planning, i.e. children, and the role they play in the attorney’s craft of estate planning.

From time immemorial, children have been a major motivation of thoughtful estate planners. Ancient Hebrew scripture consistently accents the doctrine of ‘inheritance’ to the Hebrew elders. Moses wrote ... “And ye shall take them as an inheritance for your children after you, to inherit them for a possession” [Lev 25:46]; and wise Solomon instructed the Hebrews when he wrote ... “A good man leaveth an inheritance to his children's children” [Prov 13:22]. Yes, a GOOD person leaves an inheritance to their descendants.

It stands to reason, therefore, that a seasoned estate planning attorney will be careful to craft testamentary documents (e.g. wills and trusts) to make provisions for the testator’s descendants, pursuant to the directives of the testator.

What I am going to explore next are a few ways wherein Florida law addresses the protection of children, especially those that are most helpless, i.e. minor children, in certain specific situations.

Florida Constitution

Embedded into our state Constitution is the provision that “The homestead shall not be subject to devise if the owner is survived by spouse or minor child” [Article X, Section 4( c)]. The framers wanted to make sure that, at a minimum, the homestead of a decedent could not be devised outside of the immediate family, and, more specifically, outside of minor children.

Florida Statutes

The legislature has followed the lead of the Florida Constitution by providing that ... “The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows: (1) To the descendants of the decedent” [Section 732.103, F.S.]. Moreover, the surviving spouse’s share of the intestate estate is limited when there are minor children of the decedent who are not lineal descendants of the surviving spouse [i.e. minor step children] as the legislature provided ... “The intestate share of the surviving spouse is: ... (3) If 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” [Section 732.102, F.S.].

Yes, a GOOD person does leave an inheritance to their descendants, and thoughtful estate planners will continue to make provisions for the testator’s descendants, pursuant to the directives of the testator ... and, where necessary, Florida law will continue to protect the property descending to our most vulnerable, i.e. minor children. What are your thoughts?