That question comes up a few times each week.  Some people think that you need to provide a modest gift (such as $1) to someone to evidence a desire to disinherit, while others want to add a ”no contest clause” to their Florida Wills.  Neither is necessary, since only a few individuals have inheritance rights in Florida.

The first group of individuals are spouses.  Unless you have a valid pre-nuptial or post-nuptial agreement in which your spouse waives his/her rights to receive a gift from you at death, your spouse has a right to get something; the same concept is true if you write your Florida estate plan before you get married and do not amend it after the fact (although your spouse’s rights are a little bit different).  In fact, he/she has a few rights, which include the family allowance, a right to live in your home and an elective share of your estate. 

This last right, the elective share, often is the biggest monetary right that a spouse has.  It is roughly the right to receive 30% of your estate.  In other words, if you chose to leave your spouse out of your Florida Revocable Trust, then your spouse can elect to receive 30% of the trust assets (and other assets that may not be in the trust).  This right is statutory, but not automatic - your spouse needs to affirmatively elect to receive this amount within certain statutory time constraints.  If he/she does not make a proper election, he/she will not get the elective share.  This is not true with the homestead, which will be discussed in another blog post.

The second group who has inheritance rights are children born after your write your Florida Will and not included therein.  For example, my wife and I have two girls, both of whom are named in our estate plan.  If we had written our Wills before we had children AND we did not provide for them, then they would have a right to receive our money at our deaths.  It’s good public policy to include children born after you write your estate plan – it seems that if you do not, then perhaps it was simply an oversight on your part, and so the Florida legislature wants to include your children in your plan.

You will note that I did not include children living at the time of a Will’s execution in the group of individuals entitled to an inheritance.  This also means that adult children have NO inheritance rights (unless their parents are operating with a very old Will).  Therefore, you do not have to give them $1 in an effort to include them in your plan.  I do suggest for many clients that they specifically state that a child is not included in their Florida Trust or Will.  That way, a plaintiff’s lawyer has a weakened argument that an aging mom or dad did not know who their children were when they signed their Wills.

One last item – no contest clauses.  You know, the clause that says if you challenge this Will, you don’t get anything.  Those are invalid in Florida, which is why we do not use them.