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Your family members’ rights after you die

If you are preparing your will, there are many things you should know. Florida law and estate planning in general have unique provisions that may influence how you set up your estate plans. Among these are the rights of your spouse or any children you have who may survive you. The Florida Bar explains that no matter what your will states, you are not allowed to completely disinherit your kids or your spouse.

The law in Florida allows for husbands, wives and children to receive some inheritance from a deceased spouse’s or parent’s estate even if they are not included in a will. It is important to note that a spouse may receive is different than what a child may receive.

Unless there is a prenuptial or postnuptial agreement in place stating otherwise, a spouse may receive rights to exempt property, an allowance, and an “elective share” of the entire estate. The exempt property can be paid to a spouse in lieu of a creditor. The “elective share” tends to be approximately one-third of all assets whether or not they are included in probate. In addition, a spouse may be entitled to homestead property rights and this cannot be waived by a marital contract.

Children will have no rights to any homestead property or the “elective share” that spouses may receive. However, they may be entitled to receive some form of allowance and may also be able to claim rights to some exempt property.

To learn more about the rights of surviving children and spouses in probate issues, please visit the estate planning execution page of our Florida estate planning website.

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