What are your options in probate if your spouse disinherited you?

Although divorce is more common now than it was in previous generations, some people still really mean it when they say “until death do us part.” There are couples out there who will remain married indefinitely even though they have a lasting antipathy toward one another.

While these individuals may not violate their marital vows by getting divorced, they may spend many years of their lives attempting in one petty way or another to take out their unhappiness on each other. Some spouses will take that vindictiveness with them to their grave, potentially by leaving nothing to their spouse in their last will.

Of course, there are even cases of couples with happy marriages where one spouse chooses to disinherit the other, potentially believing that other members of the family would provide for them. There can also be mistakes in the last will that leave you financially vulnerable. If you are a spouse who does not receive an inheritance in the will left by your deceased partner, you have certain rights under Florida law.

You can usually stay in the marital home

Regardless of whose name is on the deed, who paid the mortgage or whom your spouse wants to leave the home to according to their estate plan, if they die before you, you usually have the right to stay in the marital home. You have tenancy rights to the primary residence or marital home, which helps ensure you don’t wind up without a home due to the loss of a spouse.

In fact, even if your spouse wanted to leave the home to their children who are not your biological children, you have the right to live in the home until you die. The children can then assume legal ownership of the home at that time.

If you have children that you share with your deceased spouse, you have the right to retain full ownership and tenancy of the house, regardless of what your spouse put in the last will.

You have the right to an elective share of their estate

Part of the probate process will involve the courts ensuring that all of your deceased spouse’s debts receive payment. Once debts are accounted for, the courts can then determine the value of the remaining assets in the estate.

Some of these assets will likely go to specific people as part of the estate plan, while others will be part of a general pool of assets. As a surviving spouse, even if there is no last will or your spouse left a will that does not provide an inheritance for you, you should have the option of receiving 30% of the total value of your spouse’s estate. This is the spousal elective share, and it is your right under Florida probate law.