When you contemplate your estate plan, you typically focus on who you want to inherit your assets when you are gone. What happens though if there is someone you specifically do not want to inherit from your estate? More specifically, what happens if you want to cut your spouse out of your Will? Can you do that? A Vero Beach estate planning attorney at Kulas Law Group discusses what you need to know about disinheriting your spouse in the State of 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 specific gifts of your home and $100,000 to an adult child. You could also gift a percentage of your estate to a beneficiary. For example, you could gift 50 percent of your entire estate to your spouse. As a general rule, you can distribute your probate assets any way you wish within your Will. There are, however, some exceptions to this general rule. One of those comes into play if you want to disinherit your spouse in Florida.
Why Might You Want to Disinherit a 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 a person, entity, or even a family pet to whom you have made a gift within your Will. An heir is someone who is legally entitled to inherit from your estate according to the state’s intestate succession laws. Your spouse is always considered an heir of your estate. There are several legitimate reasons why you might not want your spouse to inherit from your estate, 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
Regardless of your reason for wanting to disinherit your spouse, Florida law may prevent you from doing so.
Florida Law and a Spouse’s Elective Share
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 a Vero Beach Estate Planning Attorney
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about disinheriting your spouse in the State of Florida, please contact an experienced Vero Beach estate planning attorney at Kulas Law Group by calling (772) 398-0720 to schedule a consultation.