What Is Disinheritance?
A Florida property owner has broad freedom to decide who inherits their estate. They can leave everything to one child and nothing to the others. They can leave their entire estate to charity. They can even leave their fortune to their cat. This freedom to disinherit is fundamental to American property rights.
However, Florida law places one critical limitation on this freedom: you cannot fully disinherit your surviving spouse.
The Spousal Protection
Florida provides two layers of protection for surviving spouses:
- Homestead Rights — Under the Florida Constitution (Article X, Section 4), if the decedent owned a homestead and was survived by a spouse or minor child, the homestead cannot be devised to anyone other than the spouse. The surviving spouse has the right to either a life estate in the homestead or to take it as tenants in common with the decedent's children.
- Elective Share — Under Florida Statute 732.2065, the surviving spouse is entitled to 30% of the decedent's "elective estate" (which includes not just probate assets but also certain trust assets, joint accounts, and life insurance). If the will leaves the spouse less than 30%, the spouse can "elect against the will" and claim their 30% share.
Disinheriting Children
Unlike spouses, adult children can be completely disinherited in Florida. The will should explicitly state: "I intentionally make no provision for my son [name]." Without this explicit language, the child may argue that the omission was an accidental oversight, potentially entitling them to an intestate share.
Related Terms
- Estate — The total assets subject to the will or trust
- Homestead — The property that cannot be devised away from the surviving spouse
- Probate — The court process where disinheritance is challenged
Barnes Walker Estate Planning
Barnes Walker's estate planning attorneys draft Florida wills and trusts with carefully constructed disinheritance provisions, ensuring our clients' estate plans withstand legal challenge while navigating the constitutional homestead and elective share limitations. Request a legal inquiry for assistance.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC