What the rule says
Florida protects children born or adopted after a parent executes a will. Under Florida Statutes § 732.302, a child of the testator who is born or adopted after the testator's will is executed, and who is not provided for or named in the will, is entitled to a share of the estate equal to what the child would have received if the testator had died intestate.
The rule recognizes a common reality: a will written before a child is born often does not anticipate that child. Florida treats the omission as presumptively unintentional and gives the child a statutory share rather than allowing the will to silently disinherit them.
The pretermitted child takes a share computed as if the decedent had died intestate. Under Florida's intestacy statutes, the child's share depends on whether the testator was married, what other descendants exist, and whether descendants are mutual to a surviving spouse. The pretermitted-child share is calculated against the part of the estate that would have passed to the testator's children under intestacy.
The two exceptions
The protection does not apply if either of the following is true:
1. The will reflects an intent to exclude after-born or after-adopted children. Express language in the will indicating that the testator did not intend to provide for any child born or adopted after the will's execution satisfies this exception. 2. The testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the pretermitted child. Florida law presumes that leaving "substantially all" of the estate to the surviving parent of the pretermitted child adequately provides for the child indirectly. The presumption holds unless the surviving parent does not survive the testator.
If neither exception applies, the pretermitted child takes their intestate share.
Limits worth knowing
The pretermitted-child statute has clear scope limits:
- The protection applies only to biological and legally adopted children. Stepchildren who were never adopted by the testator are not pretermitted children under Florida law, even if the testator joined the family after the will was signed and treated the stepchildren as their own. - The protection does not apply to children who existed at the time the will was executed. A child living when the will was signed but simply not mentioned in the will is not a pretermitted child. The statute addresses only children born or adopted after the will's execution. - The protection does not adjust the will's overall structure beyond providing the child's share. Other beneficiaries' shares are reduced proportionally to fund the pretermitted child's intestate share.
Florida also addresses children who are alive but unknown to the testator at the time the will was executed; those children are governed by separate provisions and may be entitled to similar protection.
What you can do about it
The cleanest fix is to update the will after the birth or adoption of a child. A new will or codicil that names the child and provides for them — or that expressly disinherits them, with an explanation — eliminates any pretermitted-child question.
If updating the will is impractical immediately, several alternatives can ensure the child is provided for:
- Beneficiary designations on life insurance, IRAs, 401(k)s, and other non-probate accounts naming the child - A trust established for the child's benefit with assets transferred during life - Custodial accounts under Florida's Uniform Transfers to Minors Act
These alternatives may not eliminate the pretermitted-child analysis but can establish that the testator provided for the child outside the will.
Who this affects most
This rule is most relevant for:
- Florida parents who executed a will before having children - Florida families where a child was born or adopted after a previously executed will - Estates where the will is significantly older than the youngest child - Adoptive families who completed adoption after a previously executed will
Florida does not require parents to update their will every time the family expands. It does provide a default protection so that an unupdated will does not unintentionally disinherit a child. Updating the will after a major family change replaces the default with the parent's actual choice.