One of the most surprising features of Florida estate law for new residents is this: you generally cannot disinherit your spouse, even if your will says otherwise. Florida grants a surviving spouse powerful statutory rights, and ignoring them is a mistake that can unravel an entire estate plan. Here is what to avoid.
Mistake 1: Assuming Your Will Has the Final Say
Florida’s elective share statute (Section 732.2065 and following) entitles a surviving spouse to claim 30% of the “elective estate.” Critically, the elective estate is broad, it reaches beyond the probate estate to include many non-probate assets such as certain revocable trust property, payable-on-death accounts, and joint accounts. You cannot simply route everything around your will and assume your spouse gets nothing. The elective share is designed to prevent exactly that.
Mistake 2: Overlooking Florida Homestead Protections
The Florida homestead under Article X, Section 4 of the Constitution carries special devise restrictions. If you are survived by a spouse (or minor child), you generally cannot leave your homestead to whomever you please. A surviving spouse typically receives a life estate in the homestead, or may elect a one-half tenancy in common interest instead. Drafting a will that devises the homestead in violation of these rules simply will not be enforced as written.
Mistake 3: Forgetting the Pretermitted Spouse Rule
If you marry after signing your will and never update it, Florida law may treat your new spouse as a “pretermitted spouse,” entitling them to an intestate share as if you had no will, unless your will provided for the spouse, the omission was intentional, or a valid prenuptial or postnuptial agreement waived the right. People who remarry later in life are especially prone to this oversight.
Mistake 4: Ignoring Family Allowance and Exempt Property
Beyond the elective share, a Florida surviving spouse may be entitled to a family allowance to support them during administration, plus exempt property such as certain household furnishings and vehicles. These rights exist regardless of what your will says. Failing to account for them can disrupt the gifts you intended for other heirs.
Mistake 5: Relying on an Invalid or Missing Waiver
Spouses can waive these rights, including the elective share and homestead protections, but only through a properly executed agreement with the disclosures Florida law requires. A handshake, a casual note, or a poorly drafted prenuptial agreement may not hold up. If your plan depends on a waiver, make sure it meets Florida’s standards.
Why It Matters in Florida
Florida imposes no state estate or inheritance tax, so spousal rights, not taxes, are the dominant planning concern for married couples. In blended families especially, these statutory protections frequently collide with a desire to provide for children from a prior marriage. Getting the balance right requires deliberate planning, not assumptions.
Consult a Florida Attorney
The elective share, homestead devise rules, and pretermitted spouse statute interact in complex ways. If you want to provide for both a spouse and other heirs, or rely on a waiver, consult a licensed Florida estate planning attorney before finalizing your plan.
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