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Florida law prevents you from disinheriting your spouse

On Behalf of | Aug 12, 2019 | Firm News

After being married for years or even decades, some couples grow apart instead of growing together. There are many issues that can deteriorate the spousal relationship, ranging from infidelity to substance abuse or just a change in personality. If one spouse becomes ill, they may resent the other spouse’s seeming inability to provide a decent level of care. In some cases, someone with a serious illness may simply resent that their spouse is healthy and will outlive them.

Regardless of the reason why, some people choose to structure their last will or estate plan in a way that intentionally limits the inheritance of their spouse. Some people even attempt to leave everything to their children or a charity instead of providing anything for their spouse.

However, Florida has laws in place that protect the rights of a spouse to inherit a certain portion of your estate. If your last will does not comply with those laws, it will be incredibly straightforward and simple for your spouse to challenge your estate in court.

What rights does a disinherited spouse have?

Florida probate code specifically protects the rights of a spouse to inherit a portion of the estate even if their deceased spouse took steps to limit that right. The only circumstance in which someone cannot challenge an estate that leaves them less than they should receive under the law is if the spouse signed an agreement, such as a prenuptial agreement, consenting to the limitation to their right to inherit or remain in the marital home.

Even then, it may be possible for someone to challenge that document in court. In the event that you do not leave anything to your spouse, they can ask the probate court to allocate their elective share of the estate, which is 30% of your estate. Additionally, they typically have the right to stay in the marital home, even if they did not contribute toward its purchase and you wish to leave it to your children.

The children will likely only inherit the home when your spouse chooses to vacate or when they die. Although you can put anything you want into your last will or estate plan, the Florida courts will not necessarily uphold your requests if they violate state statutes. Making a move to disinherit your spouse now may not do anything except force your family through a lengthy probate process.

You can choose to limit your spouse’s inheritance to the minimum under the law

Whether your motivation for reducing your spouse’s share of the estate is because you know your children need more support or because of a personal issue between you and your spouse, one of the ways to handle the issue is to adjust your last will to leave your spouse only the minimum required under Florida probate law.

You can also create an elective trust that ensures that your wishes and plans take effect when your surviving spouse dies. With an elective trust, they have access to their share of the estate without truly owning or controlling the assets.


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