How Can a Spouse Be Disinherited in Florida?
In Florida, you may attempt to disinherit your spouse through a Will or other estate planning vehicles. If parties are separated but choose to remain legally married for some reason or are in divorce proceedings, one spouse may try to disinherit their partner. However, the law provides great protection for spouses so it may not be as simple as removing your spouse’s name from your documents/assets.
If you wish to disinherit your spouse, it is best to consult with a St. Petersburg estate planning attorney to discuss your options. It is also advised to speak with a lawyer if you were disinherited by your spouse in Florida.
You Need a Prenuptial or Postnuptial Agreement to Disinherit Your Spouse
Florida law protects the legal rights of spouses upon death. For this reason, it is difficult to disinherit your spouse completely. However, there is a lawful way to make sure that your spouse does not receive anything after your passing: by signing a marital agreement. In these agreements, you can waive certain rights provided through death or divorce, and you can draft language as to “who gets what” in those two untimely events.
Since many marital agreements are discouraged because they may contain provisions that violate public policies or state laws, it is vital to work with a skilled attorney when drafting and signing an agreement to disinherit your spouse in Florida.
What is Florida’s Elective Share?
If one spouse dies with no marital agreement then tries to disinherit their partner, the surviving spouse has a few great protections under the law:
- Florida Homestead Property
- The Florida spousal elective share
Unless waived, your spouse is permitted under the Florida Constitution to live and/or own your primary residence. If the deceased spouse had children from another relationship, then the surviving spouse is permitted live at the decedent’s homestead property until that surviving spouses’ date of death. This is also called a “life estate.” This can create many practical issues, including whether the surviving spouse can afford to live at the primary residence for his/her lifetime.
Spouses can waive their inheritance rights to homestead property by signing a proper deed. If the deed has the appropriate waiver language in it, and it is signed by both spouses, then it could effectively strip the surviving spouse of their entitlement to the Florida homestead property.
Moreover, if the deceased spouse removes the surviving spouse from all of his/her assets, including as a beneficiary under estate planning documents, then the surviving spouse is entitled to at least 30% of the decedent’s elective estate, under Section 732.201, Florida Statutes. This not only includes the decedent’s primary residence or probate assets, but it includes assets held in a trust or through joint ownership or beneficiary designation. It is important that the “elective estate” is properly determined. Of course, the best way to avoid the elective share is through a marital agreement.
Consult an Attorney
There may be other ways to disinherit a spouse or make sure that they receive as little as possible, if that is your goal. If you want to disinherit your spouse, you should consult with experienced estate planning attorneys in Florida. If you are a spouse who has been disinherited, it is equally important to seek assistance to protect your legal rights and ensure that you understand your rights under the law. Contact Legacy Protection Lawyers, LLP, to schedule a consultation about your case at 727-471-5868.