Can You Disinherit a Spouse or Child?

When people think about putting together an estate plan, most focus first on how to adequately provide for their spouse and/or children. However, for a number of reasons, a person may desire to leave his/her spouse or child out of the estate plan. Not only is this approach against societal norms, it is also against the weight of the law, which means a higher standard will often apply before such an intention will be followed. The policy behind this stance, especially for the spouse, is to avoid a situation where the survivor is left with nothing for support. While a parent or spouse may have good reason to leave a loved one out of a will or trust, it is important to understand that this choice may cause conflict among family members and lead to litigation where claims of fraud or undue influence are usually made. To reduce the possibility of this outcome, a strong estate plan with appropriate language will be necessary to ensure the wishes of the creator are followed. Courts tend to look for ways to include spouses and children in the estate plan, so working with an experienced estate planning attorney is crucial to protecting one’s interests and wishes. A discussion of how Florida law treats children born after the creation of an estate, and instances where the creator specifically wants to exclude a family member from inheriting, will follow below.

After-born Children

Depending on a person’s age at the time an estate plan is created, and how diligent he/she is about updating it, additional children could be born who are not specifically listed as heirs or beneficiaries. Termed a pretermitted heir, this is a person that would normally have rights to inherit, but the person who created the estate did not know of the heir’s existence when the documents were drafted. In these circumstances, the child would receive a share of the estate as if the parent died without a will (intestate), unless it is clear the omission was intentional, or the deceased had other children at the time the estate documents were prepared, and left most of his/her property to the after-born child’s parent.

Adult Children

Adult children, on the other hand, are treated notably different. While people naturally assume there is a lasting bond between parent and child, this connection does not always exist, and some children and parents become estranged. If a parent does not have a substantial connection with an adult child, the law will not require them to leave part of his/her estate to this offspring. While the law does not require estate documents to recognize the existence of children, if a particular child is to be disinherited, it may be best to directly name the child, and expressly state he/she will take nothing under the will or trust. By making the exclusion clear and obvious, there will be fewer grounds to challenge the disinheritance, and make it easier for courts to uphold the deceased’s wishes.

Spouses

Disinheriting a spouse, on the other hand, is extremely tricky, and in most situations, not possible. Florida law grants spouses rights in the residence, exempt property including vehicles, personal effects and household furniture and furnishings, a family allowance, and an elective share of a deceased spouse’s “elective estate,” which amounts to 30 percent.   The elective estate is complex, but will include probate property, trust funds,  financial accounts, the decedent’s interest in jointly owned assets, retirement accounts, property transferred in the year before death, and other assets. In other words, the elective share can claim most types of a property a deceased spouse owned at the time of death, and the only way to avoid the application of this statute is to execute a pre- or post- nuptial agreement where the spouse expressly waives the right to the elective share.

Get Legal Advice

Factoring in family dynamics into an estate plan is a complicated endeavor, and pleasing everyone can also be difficult. However, working with an experienced estate planning attorney will help to ensure that your wishes are carried out, and those loved ones you desire to provide financial help will receive the property you intended. William Rambaum understands the complications that commonly arise with estate plans, and can guide you toward your desired outcome. Contact the Oldsmar office to schedule a consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.302.html