May I disinherit my spouse?

“For better or for worse.” These are the traditional words that our society associates with wedding vows, indicating that the two individuals marrying each other are making a commitment to each other in good times and in bad times. This commitment is meant to extend to all aspects of the married couple’s lives, and estate administration is no exception. When a married individual dies, the decedent’s spouse is entitled to a portion of the decedent’s estate. This is true in Florida even if the decedent attempted to disinherit his or her spouse. As long as the couple has not divorced, the spouse is entitled to inherit at least something (even if the couple separated).

The portion of the decedent’s estate that the living spouse will receive depends on whether the decedent had a will. If the decedent died without a will, the spouse is entitled to his or her “intestate share.” Under Florida Statute 732.102, the spouse is entitled to receive the entire intestate estate of the decedent if the decedent had no surviving descendants or the decedent had surviving descendants, but they are all also descendants of the surviving spouse. If either the decedent or the surviving spouse has descendants that are not descendants of the other, then the surviving spouse will get half of the intestate estate.

On the other hand, if the decedent had a will, the surviving spouse will receive either what the decedent bequeathed or devised to the surviving spouse in the will, or his or her “elective share” under Florida law. Generally, an individual may effectively disinherit another by not providing for that person in his or her will. However, Florida Statute 732.201 provides a mandatory elective share for the surviving spouse of someone who is domiciled in Florida at their death. The elective share consists of thirty percent (30%) of the decedent’s estate, which includes but is not limited to, the decedent’s probate estate; the decedent’s ownership interests in accounts or securities designated “Pay On Death,” “Transfer On Death,” or “In Trust For;” and trust property in any trust that the decedent had the right to revoke. Therefore, even if someone does not provide for a spouse in his or her will, and even if that person includes in the will that he or she does not want to provide for a spouse, the spouse will still be entitled to a portion of the decedent spouse’s estate.

One way to avoid or work around the elective share protection codified in Florida statutes is to enter into a prenuptial and postnuptial agreement. Two individuals who either plan to marry or who are married may choose to enter into an agreement to specify their rights relating to the marriage. One such right that the individuals may address is the elective share. The individuals may choose to waive the right to the elective share entirely.

There are other ways to get around the elective share protection afforded by Florida law. One such way is to remove assets from the type of assets defined as part of the spouse’s elective share. For example, property in a trust revocable by the decedent is part of the elective share; however, property held in an irrevocable trust is not part of the elective share. Thus, if an individual wishes to reduce the amount his or her spouse is entitled to upon death, the individual could put assets in an irrevocable trust.

In conclusion, an individual may not disinherit his or her spouse by refusing to provide for the spouse in a will because the surviving spouse will be entitled to an elective share. However, there are ways to eliminate or at least reduce what is determined to be part of the elective share. If you or someone you know is interested in asset protection and wants to better understand his or her rights under Florida law, please do not hesitate to contact the experienced estate planning attorneys at Chepenik Trushin LLP who are ready, willing, and able to take care of all your estate planning needs.