It is not easy to disinherit your spouse in the United States. People commonly use their estate plans to disinherit brothers, sisters, nieces, nephews, and even their very own children and grandchildren. However, in Florida, and the majority of states and the District of Columbia, you cannot intentionally disinherit your spouse unless your spouse actually agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement.
Beware: Spousal Disinheritance Laws Vary Widely From State to State
Unfortunately there is not one set of rules that govern what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights, referred to as “community property laws” or “elective share laws” depending on the state where you live or own property. These laws vary widely. In some states the surviving spouse’s right to inherit is based on:
- how long the couple was married.
- whether or not children were born of the marriage.
- the value of assets included in the deceased spouse’s probate estate.
- an “augmented estate” which includes the deceased spouse’s probate estate and non-probate assets.
For example, in Florida a surviving spouse has the option to receive a portion of his or her deceased spouse’s estate called the “elective share.” Fla. Stat. § 732.201. This share is equal to 30% of the deceased spouse’s “elective estate.” Fla. Stat. § 732.2065. In Florida, the elective estate 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 (this is an example of the last category described above, the “augmented estate”). For a complete list of property entering into elective estate, read section 732.2035, Florida Statutes. For a list of sources from which the elective share is payable, see section 732.2075, Florida Statutes.
Aside from this, state laws also vary widely regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years.
Disinherited Spouses Need to Act Quickly!
If your spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse.
Matt Goodwin is an Estate Planning attorney in Naples, FL. You can reach him at his office by calling (239) 302-1700. You can also make an appointment online via his website www.swfloridaestatelaw.com. Or you may email him directly at matt@swfloridaestatelaw.com.
