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What Happens If My Spouse Passes Away Before Updating Their Will?


Losing the person you loved the most in the world, and that you shared a life and home with, may be the hardest thing you will ever have to experience. During the time that you are grieving the loss, you may feel additional stress if you learn that your spouse did not update their Will to include you after you were married. Or, perhaps your spouse drafted a Will after you were married but still did not include you.

You may wonder what will happen to your spouse’s estate, and if you will receive any of it now that they are gone. If you are in this situation, our St. Petersburg wills lawyer explains what you may be able to receive below.

Your Share of the Estate Under Intestacy Laws 

According to the law in Florida, if your spouse drafted a Will before you were married and they never updated the document after the wedding, you are considered a pretermitted spouse. Under the state’s intestacy laws, you are still entitled to a share of your spouse’s estate. The intestacy laws apply when a person passes away without an executed Will.

The intestacy laws will provide you with 100 percent of your spouse’s estate if your spouse did not have any children from a previous relationship. If your spouse did have children from a previous relationship, you are entitled to receive 50 percent of your spouse’s estate and the remaining portion will be distributed among your stepchildren.

Spouses and Elective Shares 

If your spouse drafted a Will after you were already married and they did not name you as a beneficiary, you may still have a right to claim some of their estate. Florida law stipulates that a person is entitled to receive a portion of their spouse’s estate. This is known as an ‘elective share.’ Currently, the elective share is 30 percent of a spouse’s estate. The elective share also does not only apply to the probate assets of your spouse. It also applies to other assets your spouse owned that did not pass through probate, such as assets held in a revocable trust.

Your Other Options 

You may have other options for receiving a portion of your late spouse’s estate. These include assets held in tenants by entirety or joint tenancy, homestead property, and any policies or accounts that name you as a beneficiary, such as a life insurance policy.

Our Wills Lawyer in St. Petersburg Can Advise You of Your Legal Options 

Losing your spouse is extremely difficult and learning that you were not included in their will does not make it any easier. You likely have many questions and need answers. At Legacy Protection Lawyers, our St. Petersburg wills lawyer can provide them, as well as the legal advice you need to obtain your fair share of your spouse’s estate. Call us today at 727-471-5868 or fill out our online form to schedule a consultation with one of our experienced attorneys and to learn more about how we can help.



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