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Legacy Protection Lawyers St. Petersburg Estate Planning, Probate & Trust Lawyer

The Risks Of Omitting Your Spouse From Your Will


According to a recent survey, two out of three adult Americans have not yet created an estate plan. Failing to have a plan in place can leave you and your family unprotected in the event that the unexpected happens. However, failing to fully consider the law when creating your plan is equally harmful.

Deciding who will inherit your assets and property is deeply personal and complicated. As in many other states, omitting your spouse from your Will in Florida has the potential to lead to legal disputes and litigation. If you are considering making this choice, it is important to fully understand the implications of the decisions, as well as how it will impact your estate and your loved ones.

The Elective Share in Florida 

The elective share statute in Florida exists to protect a surviving spouse by giving the surviving spouse the right to a 30 percent share of your estate. If you exclude your spouse from your Will, your surviving spouse can contest your Will for many reasons, and one of them is the elective share statute. The elective share is a common reason for litigation after the death of a spouse. If you intend to exclude your spouse from your Will, it is important to speak to an attorney to discuss how to handle the elective share.

Challenges to the Will 

If a surviving spouse feels as though they have been unfairly excluded, they are legally allowed to challenge the will. This involves litigation, which is expensive and time-consuming from the estate. A spouse can use many different approaches when they are challenging a Will. A spouse may argue that another person, such as a close friend or other family member, pressured or manipulated the decedent into changing their will. Or, the surviving spouse may claim that the decedent was not of sound mind at the time they changed their Will.

Excluding Spouses from Non-Probate Assets 

Omitting a spouse from your Will may not necessarily impact property that does not have to pass through probate. For example, if you have a retirement account, you may name someone other than your spouse as a beneficiary if you want to disinherit your partner. Still, it is important to know that there are other laws that may allow your spouse to challenge their right to this type of non-probate property.

How to Disinherit Your Spouse 

Florida law does not allow you to completely disinherit your spouse using your estate plan alone. Under the elective share, even if you omit your spouse, they can still challenge the decision and receive some of your property upon your death. However, there are some tools you can use if you choose to disinherit your spouse. For example, a marital agreement, such as a prenuptial or a postnuptial agreement, can also indicate that your spouse has waived the elective share.

Our Wills Lawyer in St. Petersburg Can Help with Your Case 

While disinheriting your spouse entirely is very difficult in Florida, a St. Petersburg wills lawyer can advise on the ways to minimize the amount of property they receive. At Legacy Protection Lawyers, LLP, our seasoned attorneys can advise on your case and the best ways to reduce the assets your spouse receives. Call us now at 727-471-5868 or contact us online to schedule a consultation and to get more information.


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