Florida law protects disinherited spouses. Surviving spouses are almost always entitled to at least an elective share (30% of deceased spouse’s estate) unless the surviving spouse waived the elective share in a pre-nuptial or post-nuptial agreement.
Elective share – The elective share is 30 percent a deceased spouse’s estate. Unless the elective share is waived, the surviving will have the option to take the elective share or take whatever is left to the surviving spouse by Will or other estate planning document. In other words, if you try to disinherit your spouse or leave them a minimum amount, then your spouse can choose to take at least 30% of your estate. Examples of assets included in the elective share are assets titled jointly, pay-on-death accounts, life insurance cash surrender value, assets in a revocable trust, retirement accounts, and gifts made in the last 12 months of the deceased spouse’s life.
Pre-nuptial or post-nuptial agreement – Your best chance at disinheriting a spouse in Florida is to have them agree to waive the elective share in a pre-nuptial or post-nuptial agreement. I say your best chance because pre-nuptial or post-nuptial agreements are not always ironclad and can be thrown out or altered at the discretion of a court. If you and your spouse agree to the waiver of the elective share via a pre-nuptial or post-nuptial agreement, it is very important to have an experienced family attorney draft the pre-nuptial or post-nuptial agreement. Your spouse must have his/her own attorney review the agreement.
While a spouse is usually entitled to an elective share, there are ways to reduce the size of the elective share. A couple examples of ways to reduce the size of the elective share include making gifts during your lifetime and transferring property to an irrevocable trust.
Gifts – You can make gifts of the property that you own outright (you cannot gift marital property) during your life. The gift cannot be made jointly with your spouse and the gift must be made more than a year before death. For example, if you have a separate financial account, you can gift up to $19,000 tax free to an individual in 2025. If you want to reduce the elective share, you could gift $19,000 (as of 2025) to each of your children, grandchildren, or whoever else you want each year.
Irrevocable trust – You can transfer assets to an irrevocable trust at least one year prior to death. You must give up rights to the assets transferred to the trust permanently. Assets transferred to an irrevocable trust at least one year prior to death may not be used to calculate the elective share.
Overall, if your goal is to disinherit your spouse, it can be very difficult in the state of Florida, and you should speak with an experienced family law or estate planning attorney.