Modern family structures are no longer the same as they used to be in the past. This new scenario involving blended families, same-sex marriage, married individuals who live separate lives but remain legally married, and other complex situations create unique challenges for estate planning.
Is it possible to omit a spouse from a last will? Keep reading to find out.
Can I Omit My Spouse From My Will in Florida? – An Introduction
Like most states nationwide, Florida has solid statutory rules to protect the rights of surviving spouses. Hence, one cannot intentionally disinherit his or her spouse unless the spouse formally agrees to be disinherited (in writing) and following some formalities.
Under Florida law, the most important of the rights of surviving spouses is the elective share.
Florida Statutes §732.201 provides that “the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share.”
Please note that “the election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.”
As described by Florida Statutes §732.2065, “the elective share is an amount equal to 30 percent of the elective estate.”
Can I Omit My Spouse From My Will in Florida? – Feasible Solutions
Florida law permits a spouse to waive his or her spousal rights by signing a premarital or post-marital agreement.
As provided by Florida Statutes 732.702 (1), “the rights of a surviving spouse (…) may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.”
The waiver of spousal rights applies to:
- Elective shares
- Intestate shares
- Pretermitted shares
- Homestead property
- Exempt property
- Family allowances
- Preference in appointment as personal representative of an intestate estate, or any spousal rights
If there is no strategic beneficiary designation, part of the death benefits will be paid to the surviving spouse under his or her elective share rights.
Considering term life insurance is usually not included in elective share calculations, it is possible to use it to disinherit a spouse in Florida. Hence, the beneficiaries designated to the benefit must be individuals other than the spouse to be disinherited.
Gifting assets to individuals other than the spouse to be disinherited before death may avoid the elective share. Under Florida law, assets transferred at least one year before the decedent’s passing are not part of the elective share calculation.
Considering all gifts must be bona fide, it is crucial to consult with an expert attorney to ensure full legal compliance. Please note that while Florida does not have a gift tax, gifts whose value exceeds a certain limit imposed by federal law may trigger a gift tax at the federal level.
Another feasible method to avoid the elective share is transferring assets to an irrevocable trust before death. However, this strategy applies only in case the owner of the assets manages to transfer the assets at least one year prior to his or her death, permanently giving up property ownership to the trust.