The Rules that Apply When the Testator Tries to Disinherit Family Members

Family dynamics can often be either strained or even outright hostile in some families. Many times, this ends up manifesting itself in someone wanting to disinherit a family member through leaving them out of his or her will. However, leaving someone out of a will purposefully is something that must be done with care if you want to make sure that your wishes are followed. Because of this, when you are developing an estate plan that would involve leaving someone out of your will, you should contact a Miami estate attorney to be sure that it is done properly.

When it comes to spouses, there is not a way to leave a spouse nothing simply by writing it into a will. In the state of Florida, a spouse is entitled to what is called an “elective share”. An elective share is an automatic percentage of the estate that the spouse is entitled to. This varies by state, but in Florida, the elective share is 30% of the elective estate, which would be defined by statute. Some of the property that would be considered part of the elective estate would be jointly held property, pensions and life insurance payable to someone besides the spouse.

Even if the spouses are separated or estranged and haven’t spoken in years, the surviving spouse is still entitled to the elective share. This is despite whatever the will may say. The only way to not have a surviving spouse collect the elective share is through having them give up that right in a prenuptial agreement or a postnuptial agreement or if they waive his or her right to that share within the time period set forth under Florida law after the death of the other spouse.

The situation is quite different when it comes to disinheriting children. Someone does not have to include any of their grown children in an estate plan outside some very specific circumstances such as being contractually obligated to do so. Children can be left out of a will for any reason or no reason at all.

However, if disinheriting your children is your intention when drafting your will and developing your estate plan, great care should be taken to make sure that your wishes are accurately followed. For example, if you simply don’t mention the child you intend to leave out, it could be construed as a mistake in drafting the will, leading that child to having a stronger basis for contesting the will. Additionally, if you leave an inheritance to another beneficiary, and that beneficiary dies before you, there is a chance the child you intend to disinherit could collect that gift since they would be next in line under inheritance laws.

Because of the complexity involved, you should hire a Miami estate attorney to draft your will and develop your estate plan. If a will is drafted correctly, the chances of it being successfully contested are much lower, meaning that your wishes are much more likely to be followed. Call the Law Offices of Albert Gurevich at (786) 522-1411.