Florida law offers robust protection to ensure a deceased’s spouse will inherit their fair share of the estate subject to probate. In most cases, it is hard to disinherit a spouse completely, but there are lawful solutions to overcome this inconvenient obstacle.
Is it possible to cut a spouse out of a will in Florida? Read on to find out.
Disinheriting a Spouse vs. Florida Probate – The Basics
When a Florida resident dies while having a spouse and children, state law provides greater protection for spousal rights on the decedent’s estate.
Whether the couple lived together up until the decedent’s passing or remained legally married while living separately, the spouse can inherit a share of the estate in court.
Please note that the rights of a decedent’s spouse do not depend on the provisions in a will. Unlike the inheritance rights of adult children, the rights of a deceased’s spouse exist regardless of how clear the language used in a will is.
If a Florida resident dies without a will, the share of spousal rights on the estate increase exponentially.
Can You Cut Spouse Out of Will in Florida? – The Verdict
It is possible to leave a spouse out of a will in Florida. However, the process required to disinherit a spouse is not as simple as removing his or her name from a will and other estate planning documents.
The only way to guarantee that a spouse will not receive anything after the testator’s passing is by executing a marital agreement signed by both parties. This agreement allows the parties to waive spousal rights provided by state law in case of death or divorce.
It is worth noting that drafting a proper marital agreement requires a superior level of expertise, as the document cannot contain any terms or provisions non-compliant with state law.
In such cases, the guidance of a well-versed attorney is crucial to ensure a Florida marital agreement has full legal compliance and adequate language.
What Happens If There is No Marital Agreement?
When a Florida resident leaves a spouse out of a will but dies without a marital agreement, the surviving spouse automatically has the right to claim a share of the decedent’s estate.
The primary surviving spouse’s rights in Florida include the right to claim a Homestead Property and an elective share. Unless properly waived through a written agreement, Florida Constitution gives surviving spouse the right to inherit in the decedent’s homestead.
Depending on the existence of children from another marriage, the surviving spouse has the right to live in the homestead up until his or her death, which is referred to as a “life estate” in the property.
Under Florida Statutes §732.201, a surviving spouse is also entitled to at least 30% of the decedent’s estate, which includes the property used as his or her primary residence, all assets subject to probate, and assets with beneficiary designations.
Hence, jointly owning a property, naming assets to a trust, or using beneficiary designation is not sufficient to avoid the elective share of a surviving spouse, which can be done exclusively through a well-drafted marital agreement.
Do You Want to Disinherit a Spouse in Florida? – Immediately Seek Expert Legal Guidance
A well-versed legal advisor in estate planning and probate, Attorney Romy B. Jurado wants to help protect your estate and legacy. Contact us today by calling (305) 921-0976 or emailing [email protected] to schedule a consultation.
