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Disinheriting family in Florida – Is it possible?
Get a Will and Make Sure it Reflects Your Wishes
Your Last Will and Testament should reflect your wishes and, when administered at probate court, you wishes should be respected. However, Florida law places certain limitations on our ability to disown family members.
Disinheriting A Spouse
You cannot completely disinherit a current spouse under Florida law. If you express a desire to leave your spouse out of your estate, the law will provide your surviving spouse with a share of your estate. The amount of that share can vary, depending on what your spouse would receive if you had no Will at all and whether you have children. An exception exists for those spouses who have waived their right to make a claim you’re the estate through a valid prenuptial or postnuptial agreement. A former spouse has no right to claim on your estate upon the issuance of a Florida divorce judgment.
Disinheriting A Child
You have no legal obligation to devise any part of your estate to your adult children. However, you cannot completely disinherit a minor child in Florida. For example, pursuant to the Florida Constitution, Florida homestead property is not devisable when the decedent is survived by a spouse or minor child:
“The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”
However, property that is not homestead is devisable per your wishes. The policy here is to ensure that a minor child or current spouse will not be homeless in the event of your untimely death by disallowing you to leave your residence to someone other than your minor child or surviving spouse.
Executing and updating your will is important because Florida law gives survivorship rights to your family. In other words, your estate will automatically pass onto your surviving spouse and children if you do not have a Will. But, if you do have a Will and do not update it before your death, the later born child could be cut out of your estate. A validly executed Will is presumed to reflect your wishes and intent, so if it does not reflect an intent for a later born adult child to inherit, the presumption will be that your Will intends to leave them out.
Florida No-Contest Provisions
A No-Contest Clause is a statement in a Will that penalizes a person who contests or challenges the validity of that Will. Usually, a no-contest clause provides that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no-contest clauses in Wills. Florida Statute § 732.517 states “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”
How a Florida Estate Planning Lawyer Can Help
An experienced Florida estate planning attorney can help you formulate an estate plan to devise your estate consistently with your wishes and concerns. Before creating or updating your Last Will and Testament, speak to an experienced estate planning lawyer to understand your options. Contact The Wheeler Firm, P.A. at (850) 613-6923 or contact us online to schedule a consultation today.
WHY CHOOSE US?
Led by experienced family law attorney, Andrew D. Wheeler, The Wheeler Firm is committed to the protection and security of every client. We work to ease the stress of family law litigation, protect our client’s interests, and focus on proven results. With more than 15 years of experience litigating every form of family law case, and representing thousands of individuals and their families, we promise exceptional representation and advocacy. Call us at (850) 613-6923 for a consultation.
