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Can a person in Florida disinherit their spouse or child?

Family dynamics can be complicated, especially if a person in Florida tries to disinherit a relative. The reason for the disinheritance aside, it is important to know that there are some laws that override a person's will. This may be the case for a decedent's surviving spouse and children.

If the decedent is survived by a spouse and children, these individuals may be able to claim probate assets in certain situations, even if the decedent's will says otherwise. This is because Florida law protects the surviving spouse and children under some circumstances from being disinherited entirely. One example involves the decedent's homestead property. A surviving spouse may have a right to such property, even if the decedent's will says otherwise.

In addition, there are "elective shares" in a decedent's estate. In general, this amounts to 30 percent of the entirety of the decedent's assets, whether they are probate assets or not. A surviving spouse may be able to take advantage of the elective share. There are also family allowances that a surviving spouse or children may claim, which allows them to obtain assets prior to the final distribution of the decedent's estate. Finally, there are exempt property rights. These transfer assets to a surviving spouse or children, rather than to the decedent's creditors. Keep in mind, however, that these rights can be waived in a valid prenuptial or postnuptial agreement.

All of this being said, these statutory rights are complicated, and one should not assume that they apply to every situation. Instead, a person who believes they have a right to a portion of their loved one's estate per one of these rights has the option of consulting with an attorney to learn what they are entitled to per law. Determining who is entitled to the decedent's assets is at the heart of most probate litigation, so it is important that one knows what his or her rights are.

Source: The Florida Bar, "Probate in Florida Pamphlet," accessed on March 27, 2017

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