Can I disinherit someone?

In Florida and many states (if not all states), the short answer is you can absolutely disinherit someone . . . mostly.  There’s a catch or two though.  You can disinherit anyone to a certain degree.  The problem is that statutes sometimes allow certain heirs the ability to take an elective share of the elective estate (a percentage of the deceased overall property or at least a majority of the overall property).  Elective shares replaced dower and curtesy, which were created to ensure the personal needs and comfort of a widow were met.

Under Section 732.2065, Florida Statutes, if there is a will, and no prenuptial (antenuptial) agreement, a surviving spouse is entitled to 30% of the elective estate.  This even applies to a husband and wife who are separated, going through a divorce, or otherwise not together.  If the two are still legally married, the spouse can take this elective share even if the Will specifically states that the surviving spouse gets nothing from the estate.

If you’re worried about accidentally disinheriting someone, don’t worry too much.  It’s hard to do unintentionally, but it is possible.  Statutes often protect future spouses and children as pretermitted heirs, for instance.  If the decendant marries after making a Will, or has a child (or adopts a child) after making a Will, Sections 732.301 and 732.302, Florida Statutes allow those heirs to still take a pretermitted share of the estate under certain circumstances.  Basically, the heirs get the share they would get if the deceased died without a Will.  If the Will specifically disinherits an adult child though, the child will not take anything.

So what about a minor child?  Section 732.4015, Florida Statutes protects them to a certain degree.  The homestead cannot be devised if the decedent is survived by a spouse, minor child, or minor children.  If there is a spouse, but no minor children, then it can be devised to the spouse.  This provides at least some protection for minor children.

In the long run, Estate Planning and Probate can be a tricky area, so make sure you get advice from a professional so that you can be certain your estate is distributed the way you intended it.