Can I Disinherit My Spouse in Florida?
Creating an estate plan typically begins with deciding who should inherit your estate assets when you are gone. Sometimes, however, there is someone you specifically do not want to inherit from your estate. If that person is your spouse, it can be more complicated than simply leaving them out of your Will. The Coral Gables estate planning attorneys at Stivers Law offer a brief overview of disinheriting your spouse in Florida.
Last Will and Testament Basics
At its most basic, a Last Will and Testament is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. Your Will allows you to make both specific and general gifts. For example, you might make a specific gift of $100,000 to an adult child or leave a vacation home to a sibling. Another way to make gifts in your Will is to make general gifts. You might give half of your entire estate, for instance, to an adult child or all the money in a bank account to a friend. Generally, you can distribute your estate assets any way you wish in your estate plan; however, there are some exceptions. In Florida, for example, you need to be aware of the “elective share” a spouse is entitled to when creating your estate plan.
Why Would I Disinherit My Spouse?
While anyone can be a beneficiary of your estate, only certain people are heirs of your estate. The difference is that a beneficiary is specifically mentioned in a Will (or trust) as the recipient of a bequest. Along with being a person, a beneficiary can be a charity, an organization, or even your pet. An heir, on the other hand, is a person who is legally entitled to inherit from your estate according to the state’s intestate succession laws. Your spouse is always considered an heir to your estate. While you are not required to have a reason for wanting to cut your spouse out of your Will, there are several common reasons why people do so, such as:
- You are estranged from your spouse
- You want to protect the inheritance of children from a previous marriage
- You have made provisions outside of your Will for your spouse
A Spouse’s Elective Share in Florida
In Florida, a surviving spouse has the option to accept what was left to them in the deceased spouse’s Will or to receive a portion of their deceased spouse’s estate called the “elective share.” This share is equal to 30 percent of the deceased spouse’s “elective estate,” which includes the value of the deceased spouse’s probate estate and certain non-probate assets such as payable on death and transfer on death accounts, joint accounts, the net cash surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts, reduced by the deceased spouse’s debts.
If you want to leave your spouse less than the equivalent of his/her elective share, it is critical that you understand what steps must be taken to ensure that disinheriting your spouse will hold up in court. In the State of Florida, the only way to disinherit your spouse without setting your estate up for litigation is to:
- Make it clear in your Will that you intentionally disinherited your spouse (or left him/her out of the Will). Simply not mentioning your spouse will not be sufficient to disinherit him/her. AND
- Leave behind evidence that your spouse waived rights to inherit from you in a valid, signed agreement such as a pre-nuptial or post-nuptial agreement.
Contact Coral Gables Estate Planning Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about disinheriting your spouse in Florida, contact the experienced Coral Gables estate planning attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.