When you create your estate plan, you will include information about to whom you want your assets to go. You can name anyone you want and distribute your property as you desire.
However, if you choose to leave your spouse out of your will, you may have problems. State law limits the ability to disinherit your spouse.
What is disinheritance?
Disinheritance is simply leaving someone out of your estate plan. It also includes specifically stating in your estate documents that you do not want to leave any assets to a specific person.
Why can you not disinherit a spouse?
Florida law says you cannot completely disinherit your spouse because he or she has a rightful claim to your estate. In fact, under inheritance laws, the spouse has the highest level of rights.
What will happen if you disinherit your spouse?
If you decide to move forward with leaving your spouse out of your will or estate plan, your heirs will have to deal with it in probate. The court will allow your spouse to ask for a share of the estate. He or she has a right to around 30 percent. In addition, he or she may ask for an allowance. Your spouse could waive his or her rights, and if he or she does not ask the court for a rightful share of the estate, then it is possible to avoid any issues.
Your best option if you wish to leave your spouse out of your estate plan is to discuss it with him or her ahead of time. You may be able to reach an agreement to leave your spouse something satisfactory to avoid any claims during probate.