The answer is a common one: it depends on the facts and circumstances. It depends on what is your relationship is to the person you want to disinherit. It depends on why the relationship distant or fractured. It depends on whether you are divorced children or trapped in a bad marriage. It depends on whether your child is estranged or otherwise rejected or abandoned you. All that said, generally speaking, it is easier to disinherit a child (than a spouse) because they are estranged, a financial spendthrift, emotionally toxic, physically abusive or drug addicted.
As unfortunate as these situations can be for the family unit, disinheriting a loved one often proves necessary to preserve long-term family disharmony and reduce the potential for litigation against a decedent’s estate. If your relationship with a loved one is damaged and you believe you are disinheriting them for a valid reason to you, it may be advisable to speak with a competent estate planning lawyer to find out exactly what is and isn’t legal when executing a Last Will with disinheritance provisions.
Prepare An Enforceable Last Will To Reflect Your Wishes
If it is the desire of the testator (person executing a Will) is to limit the inheritance rights of a spouse or child beneficiary, this can only be done by executing a Will prepared with valid disinheritance provisions. Without language in a Will identifying disinherited family members, an estate will automatically pass via Florida Laws of Intestacy to testator’s surviving spouse and/or children including children who are natural born and living, later born or adopted of the decedent (deceased testator). Because a Will executed with proper legal formalities is presumed to reflect the testator’s wishes and intent, a Will can reinforce the testator’s intent to eliminate certain family members from their pool of designated Will beneficiaries. That being said, Florida law places limitations on the ability to disinherit a spouse and preserves thier right to receive a share of their deceased spouse’s estate regardless of the Will’s provisions.
Limitations On The Ability To Disinherit
Spouse. It is impossible to disinherit a spouse entirely so as to prevent them from receiving assets from your estate entirely after you pass away. This is due to Florida Statutes Section 732.102 and Section 732.201 which give a surviving spouse certain legal rights to a deceased spouse’s property in the State of Florida. In fact, if the testator dies without a Last Will, a surviving spouse has a right to receive at least 50% (and possibly up to 100%) interest in thier deceased spouse’s estate. If the testator dies with a Last Will that intentionally cuts out the surviving spouse, the surviving spouse has a right to void provisions of the deceased spouse’s Will and elect to receive the elective share (at least 30%) of thier deceased spouse’s estate. The only legal way to disinherit a spouse entirely in Florida is for both spouses to enter into a valid postnuptial agreement explicitly waiving all rights and statutory entitlement to legal benefits upon death or divorce in exchange for certain mutually agreed upon consideration and/or compensation.
Adult Children. While it is impossible to disinherit your spouse without their consent, it is possible and legally permissible to disinherit your adult child so they receive no assets from your estate after death. In order to disinherit an adult child, you must prepare a valid and enforceable Last Will expressly stating the desire for a child to not receive any assets or share of your estate. Along with the appropriate disinheritance language, you may also want to include language in the Will demonstrating that you are excluding the child not for lack of love and affection but because:
- they’ve already received substantial financial gifts from your estate during your lifetime;
- you’ve made provisions for the child to receive an inheritance through a trust or beneficiary designations on a bank/investment account, retirement account or life insurance policy;
- you’ve decided to leave the bulk of your estate to another family member, friend, pet or charitable organization;
- you’ve elected to disinherit all stepchildren from a marriage that ended in divorce; and
- you have no relationship with your child or otherwise chose to not benefit them because you disagree with their life choices.
Minor Children. Unlike adult children whom you can disinherit, you can not completely disinherit a minor child under the age of 18 years old. Moreover, in addition to statutory rights under Florida Statutes Section 732.103, minor children have a statutory contingent remainder interest in and vested right to use and occupy your Florida homestead property (primary residence). More specifically, Florida Statutes Section 732.4015 restricts a Florida homestead from being devised to anyone other than a spouse or minor children. This purpose of this statue is to ensure that your current spouse and minor children will not become homeless in the event of your untimely demise. Even if your Will devises your homestead to someone else, this Will devise will be deemed improper and voided in probate in favor of Florida’s intestate devise statute.
Exceptions From The Need To Disinherit
Spouse. There are few exceptions to the ability to disinherit a spouse under Florida law. Because divorce judgment severs any legal connection between spouses, receiving a Final Judgment of Dissolution from the family Court officially divorcing your spouse is the best way to ensure that your current spouse becomes your former spouse with no legal inheritance right to seek assets from your estate upon your death. While divorce is the primary way to sever the inheritance rights of a spouse, the other notable exception to disinheriting a spouse is to have them obtain independent counsel to represent them before signing a fairly negotiated postnuptial agreement, i.e. a mutual arms’ length agreement between spouses each agreeing to relinquish certain legal rights in exchange for reasonable consideration.
Children. Absent receiving an Order of the Court eliminating parental rights, there is no legal way to way to sever the inheritance rights of a child. That being said, under Florida law, a parent has no legal obligation to support or bequeath their estate to an adult child. For this reason, the only true way to avoid probate litigation and family disharmony is to express any disinheritance intention in writing within your Will. Only then does you estate have the ability from beyond the grave to limit the reach of a potentially overzealous or underserving child who will likely resurface to claim an interest in the estate of their estranged parent.
Challenging The Testator’s Will When Disinherited
Because a Will is a unilateral legal contract entered into under state law, unless there is a valid basis and evidence supporting a challenge to the legal effectiveness of the Will, a disinherited family member, e.g. child or grandchild, is wasting everyone’s time, energy and money to dispute or contest a Will simply because they don’t agree with the terms of the Will executed by the testator. State laws offer various grounds for a resentful relative to contest a Will admitted into probate. Depending on what grounds the Will is challenged, a Florida probate court may rule that one or more provisions of the Will are not legally binding, or it can rule that the Will in its entirety was not valid at time of execution.
Under Florida law, a disgruntled or disinherited beneficiary can challenge the admission of testator’s Will admitted into probate if:
- The testator lacked the mental capacity to sign the Will. If the probate Court finds that the testator suffered from an insane delusion or didn’t have requisite mental capacity to enter into the Will, the Will may be invalidated by the probate Court if they believe the disputing party has satisfied the burden of proof to establish that the testator lacked requisite mental capacity. The fact that a testator suffered from some mental decline or mental deficiency does not in itself satisfy this burden of proof.
- The Will was not executed with proper execution formalities. Florida statutes section 732.502 and various caselaw sets forth strict procedures for executing a valid and legally binding Will in Florida. By way of example, a testator must sign the Will in the presence of at least two witnesses who must also sign the Will in the presence of each other. A court may invalidate documents that were not signed by a testator of at least 18 years of age, a will not reduce to writing or a will without self-proving affidavit affirming attestation of the witnesses.
- The testator was unduly influenced into signing. A Will may be invalidated by the probate Court if a party to the Will pressured, persuaded or forced the testator to sign the Will often benefitting the party to the Will who was active in procuring the Will be signed. The party challenging the Will for undue influence has the burden of proof to establish the presumption of undue influence of the testator.
- The Will was procured through fraud. A Will may be invalidated by the probate Court if the testator was deliberately misled to sign the Will by a party to the Will through false representation of material facts or false representations causing the testator to make a decision he or she would not have otherwise have made.
If you are having thoughts about limiting the legal reach of a spouse or disinheriting a child, our estate planning lawyers are available to listen and offer you advise to address your planning concerns. Upon learning about your planning goals and considering any available legal options, we can create a plan to meet your family’s needs.
