Modern estate planning has changed with the fabric of the modern American family. It is more common to now see scenarios such as estranged parents who stay married to raise children, or even married couples that live their lives completely separated from each other. A common question asked by many clients is can a spouse be disinherited from a will?
The general rule is that when a person makes a will they are able to dictate who receives their property after death. However, in Florida it may be very difficult to disinherit your spouse.
Even if the spouse and decedent are separated, the decedent’s surviving spouse is entitled to elect thirty percent of the decedent’s elective estate. This law was enacted to protect the surviving spouse from being left with nothing. The only way to circumvent an elective share would require a prenuptial, postnuptial agreement, or remove assets from the elective share. A prenuptial or postnuptial agreement can waive the surviving spouse’s right to receive a portion of the elective share.
In order to receive an elective share, the surviving spouse must file an election with the probate court. The surviving spouse has up to 2 years after the death to file the election. The election must be filed earlier than 6 months after the spouse has received a copy of the notice of administration.
Once an elective share has been made, the first step of the process is to determine the amount of the share. The elective share is the right to receive an amount of money that is equal to 30 percent of the estate. A spouse who takes an elective share has no right to any specific asset of the estate, and may actually receive less money, or assets, if they had not taken an elective share. It is important to have an experienced attorney, who is familiar with Florida’s elective share law, calculate the value this value in order to receive the greatest benefit.
The elective estate includes the same property subject to probate, including property passing directly to the surviving spouse. In addition, the elective estate may include property held in a trust that was revocable by the deceased spouse. It also includes the deceased spouse’s ownership interest in the cash surrender value of life insurance on the deceased spouse’s life.
The elective estate does not include irrevocable transfers that occur prior to the date this statue (10/1/99)was enacted, and transfers that occur prior to the date of marriage.
Once the amount of the elective share is determined, the share is satisfied as provided in the deceased spouse’s will. If the will does not provide this information, the elective share in satisfied first by property that passes to the benefit of the surviving spouse. This would include life insurance and retirement assets, as well as property held for the benefit of the surviving spouse in a revocable trust. If this does not equal 30 percent, then the surviving spouse will next receive assets from the rest of the estate that were meant to pass to other recipients.
The assets that pass to the surviving spouse outright are valued by their fair market value as of the date the surviving spouse takes possession of the asset. An asset which passes to the surviving spouse by right of survivorship is valued at its fair market value at the time of death.
Florida’s probate laws regarding elective shares are complex. An experienced probate attorney should be used to help determine if the surviving spouse should choose an elective share or not. Contact Jacksonville Probate attorney David Goldman by email or phone at 904-685-1200 for help with Florida’s elective share law.