Can You Disinherit Your Spouse in Florida?

Can you disinherit your spouse in Florida? A surviving spouse can claim 30 percent of the elective estate, and the claim is due within six months of service.

Transcript

A husband dies and leaves everything to his children from his first marriage. His will names his wife for nothing. She assumes that settles it, because the will is the will. It does not settle it. In Florida, a surviving spouse can claim thirty percent of the estate no matter what the will says, and that claim reaches far past what most people think of as the estate.

Three things decide this. The first is how much a spouse can actually claim, and how much further that reach goes than the will accounts for. The second is how little time there is to file it. The third is the one clean way to leave a spouse less than that, for a spouse who means to do it on purpose.

The right belongs only to the surviving spouse of someone who died domiciled in Florida. Section 732.201 says so directly. A retiree who kept a New York domicile, or a parent who died living abroad, leaves no Florida elective share behind, no matter how much Florida property sits in the estate. Where the decedent was domiciled is the first question, and it is the one families get wrong most often.

The share itself is thirty percent of what the statute calls the elective estate, under section 732.2065. That number does not move with the length of the marriage. A spouse married six weeks and a spouse married forty years claim the same thirty percent. Some states run a scale that climbs with the years married, and some measure against a different total entirely, called the augmented estate. Florida uses a flat thirty percent of the elective estate, full stop.

The elective estate reaches far past the probate estate, under section 732.2035. It includes the decedent’s revocable trust, joint and payable on death accounts, the cash value of life insurance, retirement accounts, and certain transfers made in the years before death. A spouse who moves money into a trust or names someone else as beneficiary does not defeat the thirty percent that way. The law counts that property anyway.

The deadline moves on two separate clocks, under section 732.2135. The election is due by the earlier of six months after the spouse is served with the notice of administration, or two years after the date of death. Six months usually expires first, because the notice typically goes out early in the case. A spouse can petition the court for more time, but the two year outer limit from the date of death never moves.

An incapacitated spouse is not shut out of the claim. Under section 732.2125, an attorney in fact or a court appointed guardian can make the election on the spouse’s behalf, with the court’s approval. The judge has to find that electing is in the spouse’s best interest during what the statute calls the spouse’s probable lifetime. The election can also be withdrawn, within eight months of the death and before the court orders contribution.

The thirty percent is not the whole picture. Section 732.2105 makes the elective share additional to exempt property and the family allowance. Exempt property covers up to twenty thousand dollars of household furniture and two vehicles, under section 732.402. The family allowance runs up to eighteen thousand dollars for the spouse and dependents during administration, under section 732.403. Both stack directly on top of the thirty percent.

Homestead adds a fourth layer, and it changed in 2017. A surviving spouse’s homestead rights, usually a life estate or a half interest in the home, cannot be defeated by the will. But if the spouse did not waive those homestead rights, the value of the home is now counted inside the thirty percent calculation itself, under section 732.2045. Waive homestead rights properly, under section 732.702, and the home stays outside that math entirely.

Once the amount is set, the burden of paying it does not fall on the probate estate alone. Under section 732.2085, everyone who received property counted in the elective estate can be ordered to contribute a share, the trustee of a revocable trust, a named beneficiary, the person who received a joint account. The statute works through set classes of recipients in a fixed order, so a personal representative is not choosing who pays first.

The only clean way to leave a spouse less than thirty percent is a valid waiver, most often in a prenuptial or postnuptial agreement. Section 732.702 says a waiver of all rights, or equivalent language, in the other spouse’s property waives the elective share automatically, even if the document never uses those two words. The Third District enforced exactly that in Weisfeld-Ladd versus Estate of Ladd. The wife argued her agreement never mentioned an elective share by name. She lost anyway.

Two requirements decide whether that waiver holds up. It has to be signed in front of two subscribing witnesses, a step an ordinary contract does not need. And if the agreement is signed after the wedding rather than before it, each spouse has to make fair disclosure of what they own. Sign it before the wedding, under section 732.702, and no disclosure is required at all.

These disputes show up most in blended families, where each spouse already has children from an earlier marriage. The surviving spouse claims the thirty percent, and the decedent’s children argue the amount, or argue that an old prenuptial agreement already waived it. Because the claim reaches into trusts and beneficiary designations the children may already be relying on, the fight is rarely just about the will. Under section 732.2151, the court can award attorney’s fees to either side in that dispute.

If you are a surviving spouse who thinks you were shortchanged, the first thing to find is the date you were served with the notice of administration, because that date started the six month clock, not the date your spouse died. If you are marrying again and want to leave a new spouse less than thirty percent, the agreement has to say so in the right words, witnessed correctly, signed before the wedding if you want to skip disclosure. We draft those waivers, and we represent spouses asserting the share and estates defending against one. If either sounds like you, call this week. The deadline is the part that does not wait.

Read the full guide at stepuplaw.com/florida-elective-share

Related reading and listening at StepUpLaw

• Florida Spousal Waiver of Homestead Rights, and What Fails
• Does a Prenup Apply at Death in Florida?
• Florida Homestead & the Surviving Spouse (After Death)
• Episode 2, A Florida Homestead Deed Fails Without Your Spouse’s Signature
• Episode 15, Does Your Florida Estate Qualify for Summary Administration
• Episode 11, Can a Nursing Home Take Your House in Florida?

Related guides

• Florida Spousal Waiver of Homestead Rights, and What Fails
• Does a Prenup Apply at Death in Florida?
• Florida Homestead & the Surviving Spouse (After Death)

Stepping Up is hosted by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. Episodes are general information about Florida law, not legal advice, and listening does not create an attorney-client relationship.