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Can You Stop Your Spouse From Claiming An Elective Share Of Your Estate?


When you write a will, you are the boss.  You can leave as much or as little property to anyone you choose, regardless of their relationship to you.  If you decide to disinherit your entire family and your entire estate to your pet corgi and appoint your friend Cathy as the corgi’s guardian, this is your prerogative.  If you have drawn up your will in conformity with all the legal requirements, your children and nephews are out of luck; the corgi is under no obligation to share its inherited wealth with them.  The one family member who has some legal protection against being disinherited is your spouse.  Under Florida law, the spouse of a deceased person can claim an elective share of the estate, with the distribution of the remaining assets to take place according to the provisions of the will.  The spouse’s elective share of the estate is 30 percent if the decedent has children and 50 percent if the decedent does not have children.  If you do not want your spouse to claim their elective share of your estate, there are certain steps you can take to stop your spouse from claiming it.  Contact an Orlando estate planning lawyer to find out more.

How to Disinherit Your Spouse

One of the easiest ways to disinherit your spouse is by signing an agreement with your spouse indicating that neither party can inherit property from the other.  This is one of the main reasons that couples, especially those who marry later in life, sign prenuptial agreements.  You may decide, after you are already married, that you do not want your spouse to inherit from you; it is still possible to do this by signing a postnuptial agreement.  Prenuptial and postnuptial agreements are legally valid as long as both spouses signed the agreement willingly and understood its provisions; the agreement is not valid if one spouse signed it under duress or fraud.  In other words, you can only disinherit your spouse through a prenup or postnup if your spouse agrees to waive their claim to a share of your estate.

The other way to disinherit your spouse is to include a clause in your will in which your spouse waives their right to claim an elective share.  This was a point of dispute in the probate of Bernard’s estate.  A will that he wrote in 1982 contained a provision in which his wife Estelle waived her elective share.  He later wrote a different will in 2007; the new will stated that it abrogated all previous wills, and it did not contain a waiver of Estelle’s elective share.  Because of alleged irregularities with the signatures of the witnesses on the 2007 will, a dispute ensued over whether the 2007 will was valid and whether Estelle had the right to claim an elective share.

Contact Gierach and Gierach About the Right to an Elective Spousal Share

An estate planning lawyer can help you develop a plan for providing financially for your spouse in the event of your death.  Contact Gierach and Gierach, P.A. in Orlando, Florida to discuss your case.



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