Disinheritance and the elective share

On Behalf of | Dec 1, 2020 | Uncategorized

We all have heard stories about people who learn only after the death of a close family member that they had been written out of the person’s will. Sometimes disinheritance comes as a complete shock, and other times it comes after many years of arguments. In some particularly difficult cases, disinheritance prompts accusations that the deceased person was not their right mind when they drafted the will, and that therefore the document should be considered invalid.

A will is intended to represent a person’s last wishes with regard to their property. If it was properly drafted and executed, the instructions in a will are legally binding, and courts are reluctant to impose any changes on a valid will. For the most part, a person has the right to choose to leave a relative out of their will. However, there are exceptions.

The elective share

Florida law provides some protection for close family members to avoid complete disinheritance. The deceased person’s surviving spouse and children have the right to claim a share of the estate, if the deceased person’s will leaves them out. Known as an elective share, this totals about 30% of the total assets, including property that is not subject to probate.

The share is called elective because the family members can choose whether to claim it. There are many cases where the deceased person provided assets outside of the estate to care for family members, reserving the will for other beneficiaries.

It’s also worth noting that Florida law can provide an elective share for a spouse who was married to the deceased person after they wrote the most recent version of their will, or for children who were born after the most recent version of the will was executed.

Learn about your options

When you are speaking to a lawyer about creating your estate plan, ask whether the elective share law could affect your plans. If you have been left out of the will of a spouse or parent, you may wish to speak to a lawyer about the possibility of claiming an elective share.