The risks of leaving your spouse out of your will

On Behalf of | Nov 9, 2023 | Estate Litigation reported that two out of three people in its 2023 Will Survey did not have an estate plan. Not having a plan in place is bad, but it can be equally terrible if you fail to consider the law when creating your estate plan.

Decisions surrounding who inherits your assets and property can be deeply personal and complex. In Florida, as in many other states, leaving a spouse out of your will is a decision that can potentially lead to litigation and legal disputes. It’s important to understand the implications of such a choice and how it may impact your loved ones and your estate.

Florida’s elective share

One crucial aspect of Florida law that can lead to litigation when excluding a spouse from a will is the state’s elective share statute. This statute ensures that a surviving spouse, even if you omit them from the will, has entitlement to a portion of the estate. The elective share typically amounts to 30%.

Challenging the will

When a surviving spouse feels there has been an unjust exclusion, they have the legal right to challenge the document. Litigation can be time-consuming and costly for the estate. The spouse may use several approaches to litigating.

The surviving spouse may claim that someone, such as another family member or a close friend, manipulated or pressured the deceased into altering their will. The spouse may also claim the deceased was not of sound mind when making changes to their will.

Non-probate assets

Excluding a spouse from a will may not necessarily affect assets that pass outside of probate, such as jointly owned property, life insurance policies and retirement accounts. However, the spouse may litigate under other laws if they feel they have a right to these non-probate assets.

To minimize the potential for litigation when excluding a spouse from your will, it is crucial to ensure that your will clearly document your intentions. Transparency and clarity in your will can help safeguard your choices and provide evidence of your sound decision-making.