Can You Disinherit Someone in Florida?
The answer depends on who you want to disinherit. Florida law provides strong protections for surviving spouses that are difficult to overcome without advance planning. Children, however, can generally be disinherited with proper documentation. Understanding the legal boundaries is critical to ensuring your estate plan holds up.
Disinheriting a Child in Florida
Florida law does not require you to leave anything to your adult children. You have the right to exclude any child from your will or trust. However, how you do it matters:
Best Practice: Explicitly State the Exclusion
Your will or trust should name the child specifically and state that they are intentionally excluded. For example: "I have intentionally made no provision for my son, John Smith, and it is my intent that he receive nothing from my estate."
This prevents the child from arguing they were accidentally overlooked (a "pretermitted heir" claim).
The Pretermitted Child Rule
Under F.S. 732.302, if a child is born or adopted after the will is executed and is not provided for in the will, the child may be entitled to a share of the estate equal to what they would have received under Florida's intestacy laws. This applies only to children born after the will is signed; it does not protect children who existed when the will was created.
Minor Children
While you can technically exclude minor children from your will, they may still receive some benefits through the surviving parent, family allowance, and exempt property provisions. If you have minor children, your estate plan should address their care and financial support regardless of inheritance preferences.
Disinheriting a Spouse in Florida
Disinheriting a spouse is far more difficult. Florida law provides multiple protections for surviving spouses that cannot be overridden by a will or trust alone:
Elective Share (30%)
Under F.S. 732.2065, a surviving spouse can claim 30% of the augmented estate. The augmented estate includes not just probate assets but also revocable trust assets, joint accounts, retirement accounts, and certain transfers made during the marriage. Even if your will leaves everything to your children, your spouse can elect against the will and claim this share.
Homestead Rights
A surviving spouse has the right to a life estate in the homestead property or an undivided one-half interest as tenant in common. You cannot leave your home entirely to someone else and bypass your spouse.
Family Allowance and Exempt Property
The surviving spouse is entitled to a family allowance (up to $18,000) and exempt property (household furnishings up to $20,000) that come off the top of the estate.
How to Overcome Spousal Rights
The only reliable way to fully disinherit a spouse is through a valid prenuptial or postnuptial agreement in which the spouse waives:
- The elective share
- Homestead rights
- Family allowance and exempt property rights
The agreement must be entered into voluntarily, with full financial disclosure, and each party should have independent legal counsel. Without these elements, the agreement may be challenged and invalidated.
No-Contest Clauses in Florida
A no-contest clause (in terrorem clause) states that any beneficiary who challenges the will or trust forfeits their inheritance. Florida courts generally do not enforce no-contest clauses (F.S. 732.517). However, including one may still serve as a deterrent, especially when paired with a meaningful bequest that the beneficiary risks losing by challenging the estate plan.
Reducing the Risk of a Challenge
If you intend to disinherit someone, take these steps to strengthen your estate plan:
- Use a trust: A revocable living trust avoids probate and is harder to contest than a will
- Get a capacity evaluation: Have your physician document your mental capacity at the time of signing
- Include an explanation: A letter of explanation (kept separate from the legal document) can help establish your intent
- Use independent witnesses: Have the signing witnessed by people who are not beneficiaries
- Update regularly: A recently updated estate plan is harder to challenge than one signed decades ago
- Consider a video recording: Some attorneys record the signing ceremony to document capacity and intent
Frequently Asked Questions
Can I disinherit my child in Florida?
Yes. Explicitly name the child in your will or trust and state they are intentionally excluded. This prevents claims of accidental omission.
Can I disinherit my spouse in Florida?
It is very difficult without a prenuptial or postnuptial agreement. A surviving spouse can claim 30% of the augmented estate, homestead rights, and family allowance regardless of your will.
What is a no-contest clause and does Florida enforce it?
A clause that says a beneficiary forfeits their inheritance if they challenge the estate plan. Florida generally does not enforce them, but they can still serve as a deterrent.
Can I leave a child $1 to disinherit them?
While common in popular culture, a better approach is to explicitly state the exclusion by name. This is clearer and more legally defensible.
Need to structure your estate plan to exclude certain heirs? Contact Barnes Walker for a consultation.