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Did You Know That You Cannot Disinherit Your Spouse?

Even if you prepare a will and leave nothing to your spouse in that will, does that mean that your spouse will receive nothing? No! The surviving spouse of a person who dies domiciled inFloridahas the right to claim a portion of the deceased spouse’s estate known as the “elective share,” which is equal to 30% of the “electiveestate” in lieu of whatever they would have received under the decedent’s will or trust, if any.

In addition to the elective share rights, the Florida Homestead Law grants a surviving spouse certain rights to the decedent’s homestead property. At a minimum, the surviving spouse is entitled to receive a life estate in the homestead, which can be converted to a one-half interest as a tenant in common if the surviving spouse makes the election within 6 months of the decedent’s death. Important changes to the elective share laws took effect on July 1st, 2017 which modified several sections of the Florida Probate Code relating to the elective share. Prior to the enactment of the new law, homestead property was one of very few assets not included in the valuation of the elective estate, meaning a spouse would be entitled to the elective share plus the homestead rights. The new law expressly provides that the decedent’s protected homestead shall be included in the calculation of the elective share and not in addition to the elective share. Thus, under the new law the surviving spouse presumably will receive less assets.

So if you do not want to give all of your assets to your spouse at death (for instance, in second marriages where there are children from a prior marriage) you should ask your spouse (or preferably fiancé – it is much easier to convince someone to sign these documents before marriage than after) to sign a waiver of all spousal rights under Florida law so that you are then able to provide for your spouse in the manner that you wish and not dictated by Florida law. Of course, I am not an attorney, so please do ask your attorney about this change in the law, and how it may apply to your situation. If you do not have an estate planning attorney, feel free to call or write and we can provide you with some good options. One that I must recognize here is Sylvia Urrechaga, (Law Offices of Sylvia Urrechaga, P.L.) without whom this article would not be possible. Thank you, Sylvia for your wisdom and friendship!

From all of us at WealthEngage, we hope that 2019 brings you much laughter, health, and prosperity. Cheers!

P.s. We will be participating in the Pinecrest Community Center financial education seminar on January 31st and February 7th (10am-12pm) – hope to see you there.