Excluding Child or Spouse from a Florida Will

How to disinherit a spouse or child from your Florida Will? In order to properly exclude your spouse or child from inheriting, you should read this advice. It’s not a simple as omitting them from your will.

The Florida Probate code provides minimum entitlements for excluded family members. Also, there are circumstances where a spouse or child is entitled to more if they are simply left out (pretermitted) from the Will. Excluding a child or spouse from a Florida Will can be a difficult task.

Excluding a Spouse from a Florida Will

Some suggest leaving your spouse only a minimal share of $1 in your Will. That won’t work. Regardless of whether you provide an amount for your spouse in your Florida Last Will & Testament, the statute provides the following entitlements for your surviving spouse:

  • An elective share equal to 30% of your elective estate; 732.2065
  • If you are survived by a descendant, then your spouse is entitled to a life estate in the homestead. Your descendants inherit the property equally subject to your spouse’s life estate.
  • Instead of a life estate in the homestead, your spouse may choose to inherit the homestead as tenants in common with your descendants (with ½ to the spouse and ½ to your descendants); 732.401
  • If you are not survived by a minor child or minor children, then your spouse is entitled to the whole homestead. 732.4015
  • Exempt property including household furniture, furnishings and appliances up to $20,000 in value and two motor vehicles; 732.402
  • A family allowance as determined by the court but not exceeding $18,000.

Excluding Children from a Florida Will

Florida provides more minimum statutory rights to children than many other states. For example, each of your children is entitled to inherit a part of your homestead if you are also survived by a spouse. They may also be entitled to part of your exempt property and family allowance.

Is your Will current?

Don’t rely on a Will made prior to marriage (or prior to having or adopting a child) in order to exclude that spouse or child from your Will. The after-married or after-born/adopted children are entitled to the same share of your estate as though you had died intestate (without making a Florida Will at all). The intestacy portion may end up being greater than the statutory minimum entitlements. 732.301-2

What should I do then?

Update your Florida Last Will and Testament as soon as you get married, divorced or have a child (by birth or adoption).

Be careful: simple will forms found on the internet are not designed for excluding your spouse or children.

Many people believe that a family member is excluded from a person’s Will, if they are simply not mentioned in the document or left a teeny share. As you can see, this is clearly not the case. Excluding a children or a spouse from a Florida Will requires careful planning. You need to see a qualified lawyer. A wills and estates attorney can provide you with the right wording for your Will and can advise what other appropriate action you may need to take.


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