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If Jose Fernandez Left No Will, Can His Unborn Baby Become His Heir?

Jose Fernandez Estate.jpg

The death of Miami Marlins pitcher Jose Fernandez is a tragedy felt across our country. His death is particularly tragic for his girlfriend, who is pregnant with their first child. If Fernandez, 24 years old, was like most people his age, he did not have a will. Time will tell. Meanwhile, the question has been asked whether his unborn child will inherit his fortune. The next question is if the child inherits the fortune at when would the fortune be actually distributed to the child.

I'll start with a caveat to my answer. I am not a Florida lawyer, but I am a California lawyer. I do not practice law in Florida, and so my reading of Florida law is certainly not dispositive. Press stories have quoted Florida attorneys on the nature and effects of Florida law on an unborn child of an unmarried deceased father. Most accounts recite the belief that the child will in fact inherit Jose Fernandez' fortune.

While I defer to the Florida press accounts I can speak as to what would happen in California under similar circumstances.

Until a child is eighteen years old, the age of majority, he or she can't inherit property in their own name. A probate court will need to appoint a property guardian, sometimes called a guardian of the estate, to manage the minor's money until he or she is 18 years old. At 18 a child can inherit property in his or her name. This is an obvious problem and a reason why people should have a will or a trust. Most 18 year olds - nearly all - are not prepared to handle a fortune.

It doesn't take much imagination for most of us to think how we would have spent millions of dollars if given to us on our 18th birthday. I turned 18 in 1968 - a classic year for muscle cars - I'm sure that I would have had one or more of the classics and who knows what else.

California law provides children of the decedent conceived before the decedent's death but born thereafter will be treated as if they had been born in the lifetime of the decedent. (California Probate Code 6407) It the decedent was unmarried, had no will or trust - that is he was intestate - and died with only one child, then that child inherits the entire intestate estate.

Social Security has a special set of rules regarding California intestacy laws.

"In the case of a child born after the death of its alleged father, a parent-child relationship may be considered established if: a. the father has openly acknowledged paternity in such ways and under such circumstances as could reasonably be expected of a prospective father under similar circumstances, and did not conceal or deny paternity; and b. he received the pregnant mother into his home as the mother of his expected child or otherwise demonstrated an intent to receive the child into his home as his natural child."

Just days before he died, Jose Fernandez posted a picture of his girlfriend on Instagram announcing they would be having a baby together. He posted "I'm so glad you came into my life. I'm ready for where this journey is gonna take us together." The twitter hashtag was "family first." There is little doubt that this star pitcher was excited about becoming a father. It certainly appears that Florida counsel will be hired to protect the inheritance interests of this unborn baby. There is great evidence, given the loving statement of the now-deceased Jose Fernandez, which supports the pitcher's fatherhood of the unborn child.

Real life events lived in real time are far different than Monday morning quarterbacking or review mirror thinking. In this case Jose Fernandez was likely consumed by the rigors of baseball and just learned of his fatherhood shortly before his death. It probably didn't strike him, or anyone else for that matter, that he should run, not walk, to a Miami estate planner. This is the real world.

That said, the pitcher's child will be well taken care of during his minority but faced with incredible financial responsibilities when he turns 18. These things turn out best when the 18-year-old turns to trusted advisors for guidance and care in protecting and preserving their financial future. This does happen many times in similar circumstances. In any event, the law does provide mechanisms for the unborn child's inheritance, care during his or her minority and ultimate asset distribution at the age of 18.

If Jose Fernandez Left No Will, Can His Unborn Baby Become His Heir? from Hackard Law on Vimeo.

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