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Florida’s ‘Dutiful Child’ Inheritance Exception


A change to a last will and testament is not unheard of, and, on its own, is not a reason for concern. However, sometimes a change to a will raises questions after the testator passes away. This might happen if a person is unexpectedly cut out of the will, or if another person is set to inherit a larger share than other friends or family members think is right or fair. In these cases, questions as to the testator’s motivation behind the bequest can lead to will contests.

One of the common arguments for contesting a will is that a beneficiary or heir had an “undue influence” upon the testator when they drafted the last will and testament. While these cases and issues can be quite complex, at a 10,000 foot level the idea is that the will is being contested because one party is accusing another party of improperly persuading a testator to either create a will or revise an existing will for the purpose of benefiting that individual’s personal interests.

Close Relationships and Blurred Lines

When considering a will challenge for reasons of undue influence the Florida courts will consider several factors. These factors include considering:

  • whether the party at issue was the one who arranged for the testator to create the will,
  • the accused party’s knowledge of the contents of the will,
  • the party’s presence during the signing of the will

While it is understandable that the actions laid out above could very well be the actions taken by a greedy party intent on exerting influence over a testator, they are very often also the actions taken by innocent adult children of the testator who are taking steps to ensure their elderly parents are cared for.

So what happens when an adult child does take those actions, that could be considered under some circumstances to be suspect?

Case Law

Florida courts have recognized that undue influence claims might arise in cases where a testator’s children have taken actions that could look suspicious, but in reality the child was aiding their parent.

In Florida case law, these kinds of individuals might be referred to as a “dutiful son” or “dutiful daughter.” In cases where an alleged wrong-doer was simply taking actions in furtherance of their parents’ well-being, acting as a dutiful son or daughter, the actions outlined above may not be the red-flag of a nefarious influencer

The First District Court of Appeals noted that the ‘dutiful child’ exception recognizes that factors that could potentially indicate undue influence in some circumstances could sometimes naturally be present in a close parent-child relationship, without there being any intent to influence their parent testator.

The courts have held that there is no presumption of undue influence in circumstances where “communications and assistance are consistent with a dutiful adult child toward an aging parent.” The courts found that evidence that an adult child often assisted their parent in doing tasks is not sufficient to demonstrate that the adult child exercised undue influence over the parent. Afterall, the parent child relationship IS important, and the court noted that if an adult child cannot talk to his parent, then the courts would have demolished the family ties of love and natural affection. \

There are, certainly, circumstances where an adult child absolutely has exercised undue influence over a testator. What is important to understand is that Florida law has developed to narrow the reach of undue influence charges, and the case law has developed to protect what the courts see as important family relationships.

Contact Suncoast Civil Law

If you believe you fit into the dutiful child exception, or you need to understand how to demonstrate that this exception should NOT apply in your own probate litigation case, contact the esteemed Sarasota wills & probate lawyers at Suncoast Civil Law.


Carter v. Carter, 526 So. 2d 141 (Fla. 1st DCA 1981) (casetext.com/case/carter-v-carter-65)

Estate of Kester v. Rocco, 117 So. 3d 1196, 1200 (Fla. 1st DCA 2013) (casetext.com/case/estate-of-kester-v-rocco-1)