Estate Planning for a Surviving Spouse

West Palm Beach Estate Planning Attorney

Florida law doesn't allow for the complete disinheritance of a spouse if the will was made while the couple was already married (If however the will was made before the marriage, the surviving spouse may be disinherited). Should an individual desire to disinherit the surviving spouse, the surviving spouse can inherit through other means. The surviving spouse is entitled to part of the deceased spouse's estate in most cases, even if the will fails to provide for him/her.

First, a surviving spouse may take what is called an elective share of the deceased spouse's estate. Florida’s elective share law is intended to protect a surviving spouse who has been disinherited or left only a small portion of the estate. A surviving spouse may elect to receive 30% of the estate, regardless of the terms of the will. However, a surviving spouse who waived his/her right to an elective share in a prenuptial or postnuptial agreement can't take the elective share after her spouse dies.

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Additionally, a surviving spouse is entitled to a life interest in the real estate that served as the couple's main home. As stated previously, the remaining interest belongs to the deceased spouse's descendants, such as his/her children. This means that even if the deceased spouse's will left the home to someone other than his/her spouse, his/her spouse is still entitled to live in the home after his/her death so long as his/her will was made after the two married. This allows the surviving spouse to live in the home, rent-free, until he/she dies, at which time the remaining interest passes to the deceased spouse's heirs. As with an elective share, if the surviving spouse waived his/her homestead rights in a prenuptial or postnuptial agreement, he/she can't claim this entitlement after his/her spouse's death.

Finally, the surviving spouse is entitled to a family allowance, regardless of his/her share in the will, so long as the will was made after the two married. This allowance is a cash amount, not to exceed $18,000, and is in addition to an elective share and his/her interest in the marital home. The allowance is paid out of the estate's assets during the probate process and is meant to support the spouse during the probate proceedings. If the deceased has minor children who are not living with the surviving spouse, the allowance is divided between the surviving spouse and minor children. The surviving spouse is not entitled to the money during the estate proceedings. And again, this family allowance is subject to a waiver in a pre or post marital agreement.

In sum, if you intend to disinherit an heir or a surviving spouse, it should be expressly stated in your will. Otherwise, a court could interpret the omission to be a mistake or a failure to update the will. Also, be aware the Florida law otherwise provides for minor children and surviving spouses with only a few exceptions. Wills should be drafted by an estate-planning attorney who can discuss your objectives and make recommendations as to the options available to convey property to the ones who matter most.

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