Can You Disinherit Your Spouse in Florida? Understanding a Surviving Spouse’s Rights
A common misconception in estate planning is that a person can simply sign a will or trust leaving everything to someone other than his or her spouse.
In Florida, it is not always that simple.
Florida law provides surviving spouses with several important protections that may apply regardless of what a deceased spouse's will or trust says. These protections can affect the family home, probate assets, certain non-probate assets, and even lifetime transfers made as part of an estate plan.
For married individuals—and particularly those in second marriages, blended families, or with significant separate property—understanding these rights is an important part of creating an effective estate plan.
1. The Elective Share
One of the most significant protections available to a surviving spouse in Florida is the elective share.
Generally, a surviving spouse may elect to receive 30% of the deceased spouse's elective estate rather than simply accepting what was provided under the deceased spouse's estate plan.
Importantly, the "elective estate" is not necessarily the same thing as the probate estate.
Depending on the circumstances, the elective estate may include certain assets that would otherwise pass outside of probate, including interests in revocable trusts and certain other transfers or property interests identified under Florida law.
This is an important distinction.
Simply transferring assets into a revocable trust or arranging for assets to pass outside of probate does not necessarily eliminate a surviving spouse's elective-share rights.
2. Florida Homestead Rights
Florida provides particularly strong protections for a surviving spouse when the deceased spouse's property qualifies as protected homestead.
Florida law restricts how homestead property may be devised when an owner is survived by a spouse or minor child.
For example, when a homeowner dies survived by a spouse and descendants, the surviving spouse may have rights in the homestead regardless of what the deceased spouse's will provides. Depending on the family circumstances, those rights may include a life estate in the property or an election to receive an undivided one-half interest as a tenant in common.
The specific result depends on the circumstances, including how the property was titled, whether the deceased spouse had descendants, whether those descendants were also descendants of the surviving spouse, and whether applicable rights were validly waived.
Because Florida homestead is governed by both constitutional and statutory provisions, it deserves special attention when preparing an estate plan.
A provision in a will or trust does not necessarily override Florida's homestead protections.
3. What Happens If You Get Married After Signing Your Will?
Marriage itself can change the outcome of an existing estate plan.
Suppose someone signs a will leaving his or her estate to children or other beneficiaries and later gets married but never updates the will.
Florida law contains protections for what is known as a pretermitted spouse.
Generally, when a person marries after executing a will and the spouse is not provided for in that will, the surviving spouse may be entitled to receive the share he or she would have received if the deceased spouse had died without a will.
There are exceptions, including circumstances involving a valid waiver or where the will demonstrates that it was intentionally made in contemplation of the marriage.
The larger planning lesson is simple: an estate plan should be reviewed after marriage.
Getting married can create legal rights even if the existing estate planning documents remain unchanged.
4. Exempt Property
A surviving spouse may also be entitled to certain property that is protected from claims against the estate, subject to Florida law.
This can include certain household furniture, furnishings and appliances, certain motor vehicles regularly used by the decedent or members of the immediate family, and other specifically identified property.
These rights are separate from what a surviving spouse may receive under the will.
As a result, determining what a surviving spouse is entitled to during probate requires more than simply reading the distribution provisions of the deceased spouse's will.
5. Family Allowance
Florida law also permits a surviving spouse and certain qualifying lineal heirs to receive a reasonable family allowance from the estate during probate administration.
The purpose is to provide financial support during the period in which the estate is being administered.
The amount is subject to statutory limitations, and entitlement depends on the applicable circumstances, but it is another example of a right that can exist independently of the ultimate distributions provided under the will.
6. What If There Is No Will?
If someone dies without a valid will, Florida's intestate succession laws determine who receives the probate estate.
A surviving spouse may inherit the entire intestate estate in some circumstances.
In others, the surviving spouse may share the estate with the deceased spouse's descendants. The result can depend on whether the deceased spouse had descendants from another relationship and whether the surviving spouse has descendants who are not descendants of the deceased spouse.
This is one reason blended-family planning requires particular care.
Without an estate plan, Florida law—not the family—determines how the probate estate is divided.
7. Can Spousal Rights Be Waived?
Certain spousal rights can be waived.
This commonly occurs through a properly drafted prenuptial or postnuptial agreement, although Florida law also recognizes certain other written waivers when the applicable statutory requirements are satisfied.
Depending on the agreement and circumstances, a spouse may waive rights relating to the elective share, intestate succession, homestead, exempt property, family allowance, and other interests.
However, the validity and scope of a waiver can become extremely important after death.
Simply assuming that a spouse "agreed not to take anything" is not enough. The actual written agreement and the legal requirements applicable to the waiver must be reviewed.
So, Can You Completely Disinherit Your Spouse in Florida?
Not simply by leaving your spouse out of your will.
A surviving spouse may have rights arising under Florida law regardless of what the deceased spouse's will or revocable trust provides. Those rights may involve the elective estate, homestead, probate property, exempt property, and other statutory protections.
There may be planning strategies available when spouses intend to keep their estates separate or agree to waive certain inheritance rights, but those arrangements should be addressed deliberately and documented properly.
This becomes especially important for:
Second or subsequent marriages;
Blended families;
Individuals entering marriage with significant separate assets;
Business owners;
Individuals who want children from a prior relationship to inherit particular assets; and
Couples who have entered into prenuptial or postnuptial agreements.
Marriage Should Trigger an Estate Plan Review
Marriage is not merely a personal milestone. It can significantly affect a person's legal and estate-planning rights.
An estate plan prepared while someone was single may no longer produce the intended result after marriage. Likewise, a plan that attempts to provide differently for a spouse may not accomplish its intended purpose if Florida's surviving-spouse protections have not been considered.
For that reason, wills, trusts, beneficiary designations, real estate ownership, and any existing marital agreements should be reviewed together when creating or updating an estate plan.
The goal is not simply to decide who receives what. It is to make sure the estate plan actually works within Florida law and produces the intended result when it matters.
This article is provided for general informational purposes only and does not constitute legal or tax advice. Florida probate, homestead, elective-share, and marital-rights laws are fact-specific. Individuals should consult with appropriate legal and tax professionals regarding their particular circumstances.
