Disinheritance Clause in a Will: What it Means for Would-Be Heirs

Shot of a senior couple looking unhappy while going through paperwork at home. Disinheritance clause concept.

Being left out of a loved one’s Will hurts. It can leave you without the necessary funds to provide for you and your family during a time of grief, and can change your long-term financial plans. When a disinheritance clause in a Will cuts you off from your inheritance, you need to know what your options are. Depending on the circumstances of the Will’s entry, and your relationship with the deceased, you may have the right to challenge the Will and get your inheritance back.

Is a Disinheritance Clause in a Will Enforceable?

Generally, Florida residents are allowed to direct the distribution of their assets after death through their Last Will and Testament. With a few limited exceptions, these gifts (devises) will be enforced by the Florida probate courts. That means that a deceased’s assets will go to the specific people he or she lists, and not to anyone else.

In some cases, there may be a disinheritance clause in a Will explicitly stating that one or more people are not to receive any inheritance in the distribution of the estate. This request will be honored, except in certain circumstances (discussed below). If a valid Will says that a person’s spouse, children, or other family members are not entitled to an inheritance, those would-be heirs could be excluded from the distribution of the estate.

Who Can’t be Disinherited?

The State of Florida has declared that certain members of a person’s closest family cannot be entirely disinherited, no matter what the disinheritance clause in a Will says. This restriction is limited to people who would traditionally have been the dependents of the deceased.

Surviving Spouse

Florida law says a person cannot disinherit his or her current spouse entirely. (Divorced spouses’ rights are terminated automatically when the divorce is final). A surviving spouse is legally entitled to at least 30% of the deceased’s elective estate, and has a claim to a certain portion of the family home under the Florida homestead exemption.

However, spouses are allowed to sign marital agreements (often called prenuptial or postnuptial agreements) waiving their right to inherit as a surviving spouse after one another’s deaths. (These provisions are almost always mutual.) If a disinheritance clause in a Will is based on a prenuptial agreement, both the will and the “prenup” will need to be invalidated for the surviving spouse to assert his or her claim to the property.

Minor Children

Minor children (under age 18) are similarly protected under Florida law, though not to the same extent. The Florida Homestead Exemption law says that a “homestead” (generally the family home) cannot be given to anyone other than the surviving spouse or minor children if any survive the owner of that property at the time of their death. If a single parent dies while caring for minor children, another relative may be named trustee over the homestead property, and hold it for them on their behalf.

What are the Legal Rights of a Disinherited Child?

If you were the adult child of the deceased and you were left out of the Will or named in the disinheritance clause, you still have rights during the estate administration process. All a person’s “heirs of law” – those who would have inherited under the Florida intestacy laws – are often–though not always–served with notice when that person’s estate is submitted to the Florida probate court.

A disinherited child or another natural heir may file a petition in the Florida probate court challenging the Will. Disinheriting a child is not common. If you expected to inherit from a parent’s Will and did not, there may be grounds to contest that Will’s validity. For example, if the Will submitted to the probate court had been changed in recent years, there may be questions about the deceased’s mental capacity when it was signed, or whether someone exerted undue influence over the deceased to exclude you.

Contact Us Today to Challenge a Disinheritance Clause in a Will

If you have been disinherited by your parent or left out of a loved one’s will, it may be worth considering whether there are grounds for a Will challenge. At Harrison Estate Law, P.A., our experienced probate litigation attorneys can help you investigate your loved one’s choices when entering the Will and decide if there are grounds to challenge it. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.