Wills are altered by marriage, death, or birth of any potential legatees. When a testator, the person making the will, experiences one of these life-changing events, Florida law requires that the will be probated as if it had been altered by the event. This means that if a person marries and does not change his/her will, the will is probated as if the person had changed the will to reflect the statutary distribution of property. It is important to consult with an estate-planning attorney any time you experience one of these events.
A spouse can be "disinherited," or cut out of a will, in Florida only under certain conditions. While testators generally have the right to distribute their property as they choose, in Florida a spouse can only be left out of a will if a properly executed pre- or post-nuptial agreement is in place. In a case where a will reflects few or no benefits to the surviving spouse, the spouse is generally given a choice of any benefits evident in the will or 30% of the estate's value after taxes and probate costs.
The surviving spouse and children are also entitled to certain protections regarding the family residence, or homestead, ensuring that they are not forced from their home. Further, any property owned as joint tenants with right of survivorship passes to the survivor in the case of death; this property cannot be willed to another person. There are also statutory death benefits available to a spouse and surviving children under Florida law.
In cases where there is a reason to leave a spouse out of a will, perhaps through separation or by verbal agreement, an attorney must be retained to draw up the proper documents in order to legally affect this. If a will is probated that is not backed by a pre- or post-nuptial property settlement, the will can be declared invalid, and the statutory distributions will be used to distribute any assets.
This article is not intended to be used as legal advice. Only an estate-planning attorney licensed in Florida is qualified to give legal advice on this subject.
