Wills and Nuptial Agreements: Part 2 of 3

In light of the Florida Probate Code’s statute establishing elective share rights for surviving spouses, is there a way to legally disinherit your spouse? We discussed that without a properly drafted and valid prenuptial or postnuptial agreement, you cannot disinherit your spouse. You can disinherit your spouse if she freely waives her right to receive an elective share by entering into a nuptial agreement. To disclaim her statutory 30 percent mandatory inheritance, your spouse must freely enter into a prenuptial agreement. In some cases, your spouse can waive her elective share rights after marriage by entering into a valid postnuptial agreement. State laws govern the essential elements of binding marital agreements.

In Florida, the Florida Statutes Chapter 732 governs the elective share rights for surviving spouses and their rights to community or marital property. Generally, a spouse’s elective share includes community or marital property and separate property. Fully explaining the marital property rights that spouses have requires more than a 300-or 400-word article or blog.