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Elective share and disinherited spouses

On Behalf of | Feb 5, 2020 | High Asset Divorce |

There are several reasons spouses may wish to disinherit each other. One may find that the other was unfaithful, and while choosing to stay for the children, decided the spouse should not become entitled to their possessions after death. Some spouses may wish for their belongings to go to other family members because their spouse already makes a high income. Couples who separate or are in bitter marriages also commonly want to disinherit each other. 

According to Cornell Law School, elective share is the existing law that makes this difficult to achieve in several American jurisdictions. States that recognize separate property rights in a marriage tend to have these laws in place. In most instances, when they do, the surviving spouse becomes entitled to a third of the probate estate. The length of the marriage is not typically taken into account. 

The Florida Bar notes that in 2013, a committee convened to review the elective share laws in the state. At the time, they had neither been thoroughly reviewed nor updated since 1999. After the review, several of the recommendations made by the committee were enacted to improve the inheritance protections available to spouses. These came into effect by 2017. 

One thing to note about Florida’s elective share laws is that all assets are included. This eliminates the loophole that spouses used in other states to disinherit their spouses by transferring assets to non-probate accounts. These assets included life insurance policies, retirement accounts and trusts. 

Disinheriting a spouse in Florida is difficult. Because of this, sometimes it is better not to put off divorce when couples stumble upon irreconcilable differences.