Believe it or not, it isn’t easy to disinherit your spouse.
You can’t cut your spouse out of your estate unless they agree in a Prenuptial or Postnuptial Agreement. Even if your will says otherwise, Florida’s “elective share laws” ensure that surviving spouses have rights to inherit.
In fact, Florida’s elective share law prevents surviving spouses from being denied a share of a revocable trust, probate estate or other property. This law entitles a surviving spouse to a portion of the deceased spouse’s estate, regardless of what the will says. Surviving spouses can override the Will’s terms to potentially receive 30% of the estate.
What if I am newly married? If you marry after making a will and your new spouse lives longer than you do, according to Florida law, the survivor receives the 30% elective share. Exceptions include prenuptial or postnuptial agreements, provisions in the will providing for the spouse, or a clear intention in the will not to provide for the spouse.
But what about my home? The Florida Constitution and Statutes give a surviving spouse the right to your home that overrules the terms of a will or trust.
I like to tell my clients a story that takes place in the early 1900s when women weren’t allowed to own real property. Their spouse would go to the local saloon to win back his poker losses, and the only thing left to throw in the pot was their homestead deed. The wife and children would then be left homeless. Therefore, the Florida Constitution enacted a specific provision which provides for extra special homestead protection.
Prenuptial Agreements to the Rescue
A prenuptial agreement can be very useful in such a situation. A prenuptial agreement is essentially a contract between two individuals preparing to marry that details how property will be owned throughout the marriage and what rights each spouse has to the property of the other. The agreement specifies the nature and extent of the property that each spouse is bringing into the marriage as well as how that property will be divided if the couple ever divorces or one spouse dies during the marriage. The agreement can outline the extent to which a spouse has the right to give their property to their children from a different relationship or to charities or other beneficiaries through estate planning. It also allows each spouse to waive certain rights to the property of the other spouse, such as elective share rights.
If you are planning to get married, or planning on disinheriting your spouse, time to meet with an Estate Planning attorney to help navigate your decisions!
Andrea L. Jakob, PA is located at 12401 Orange Drive, Suite 219 in Davie. They can be reached at
954-862-1479 or on the at www.jakoblegal.com.
