Can you disinherit your spouse? Recent changes to Florida’s Elective Share laws

Sep 27, 2017 - Blog by

Can you disinherit your spouse? The short answer is “no”, you cannot totally disinherit your spouse in most circumstances.  Many of our estate planning clients come in with “blended families”.  Later in life marriages, and both of the clients wish to set aside certain things for their children from a first marriage, even something as substantial as their long-time homestead, to the exclusion of their current spouse.  Most people do not realize that once you are married, there are certain restrictions on how you treat your spouse in your estate plan.   

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This year Florida made some significant changes to the “elective share” laws.  An over-simplified definition of the elective share is the percentage of the Estate a spouse is entitled to, unless they have validly waived their claim to that portion of the Estate.  It affects pay on death accounts, real estate, and other assets that may not pass through probate.  It’s one of the most complicated issues we deal with in estate planning and probate, and it is more complicated by the fact that so many people don’t realize it exists when they create their estate plan.

For practitioners, a good summary of the changes is located here:  https://www.flsenate.gov/Session/Bill/2017/724/Analyses/2017s00724.rc.PDF . Major changes include the fact that homestead is now included in the elective estate; an extension of the time to file for the elective share; and a broader basis for shifting attorneys fees.

McDonald Fleming Moorhead assists clients with everything from the simplest, to the most complex estate plans, and assists clients with probate administration in all Florida counties.  We have handled thousands of probates all over the State in the past 25 years. Visit www.statewideprobate.com for useful articles and information concerning Florida probate administration.

Katie White is an AV Rated®  attorney who practices in estate planning, probate and guardianship. Contact Katie at (850) 202-8535 or kmwhite@pensacolalaw.com