Can I disinherit my spouse or child in Florida?
1. Spousal Disinheritance. Florida is a separate-property (common-law) state. Under Fla. Stat. § 732.201, a surviving spouse is entitled to an elective share equal to 30% of the elective estate, which includes probate assets, revocable trust assets, joint property, life insurance, retirement accounts, and certain transfers within one year of death (Fla. Stat. § 732.2035).
2. Augmented Estate. Florida's "elective estate" is conceptually similar to the UPC augmented estate but uses a flat 30% rather than the UPC sliding scale. It captures non-probate transfers to prevent will-substitute avoidance.
3. Elective Share Procedure. The surviving spouse (or attorney-in-fact / guardian) must file the election under Fla. Stat. § 732.2135 within the earlier of six months after service of the notice of administration or two years after the decedent's death.
4. Pretermitted Child. Under Fla. Stat. § 732.302, a child born or adopted after execution of the will who is not provided for or mentioned receives a share equal to the intestate share, unless it appears from the will that the omission was intentional or the testator provided for the child outside the will.
5. Intentional Disinheritance of Child. Adult children may be fully disinherited if the intent is clearly expressed; Florida has no forced heirship for adults.
6. Louisiana Forced Heirship. Does not apply in Florida.
7. Prenuptial / Postnuptial Waiver. Florida has adopted the Uniform Premarital Agreement Act (Fla. Stat. § 61.079). A waiver of elective share, homestead, and intestate rights is enforceable with fair disclosure and voluntary signing per Fla. Stat. § 732.702.
8. Homestead, Family Allowance, Exempt Property. Homestead under Fla. Const. art. X § 4 cannot be devised if survived by a spouse or minor child. Family allowance up to $18,000 under Fla. Stat. § 732.403; exempt property under § 732.402.
9. Will Contest Grounds. Lack of capacity, undue influence, fraud, duress, or improper execution under Fla. Stat. § 732.5165; contest period limited by Fla. Stat. § 733.212.
This is legal information, not legal advice.
- You are a surviving spouse and the elective-share deadline is approaching
- You want to disinherit a spouse and need a valid premarital or postmarital waiver
- Florida homestead is involved and you have a spouse or minor child
- Fla. Stat. § 732.201
- Fla. Stat. § 732.2135
- Fla. Stat. § 732.302
- Fla. Const. art. X § 4
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.