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Your spouse has rights to the estate if you die, despite the will

People create and change last wills for a variety of reasons. Generally speaking, early estate planning is a wise decision for anyone with children or substantial assets. Even those who only have moderate overall assets should consider planning their estate if they have strong feelings about the disposal of their assets after they die.

It is important to understand, however, if your estate plan deviates from Florida state law, your wishes as outlined in your last will or estate plan may not get followed. Specifically, you should educate yourself about the rights of your spouse to a specific portion of your estate.

Florida law protects spouses from omissions and oversights

Typically, the assets that you acquired during marriage belong to both you and your spouse, even if only one of you made most of the money. If you were to divorce, unless you have a prenuptial agreement on record, the courts will likely split any assets you acquire in your marriage with your spouse.

Understanding that this is how the courts approach marital assets is important because it will help you understand how they approach a spouse's rights within an estate as well. While you may have had a falling out with your spouse, that does not allow you to write them out of your will.

Although you can adjust your will to reflect your new wishes, your spouse will have the ability to challenge your last will or estate plan unless it complies with the law. The only exception is if your spouse voluntarily agrees to execute a document acknowledging and accepting the fact that you have disinherited them.

Wills that don't comply with Florida state law may end up thrown out

The person creating a will, also called the testator, can theoretically include anything they want in a last will. In some cases, provided that their administrator agrees to follow the terms of the will, it will not matter if the individual requirements of the will do not directly comply with state laws.

However, if anyone in the family, including heirs or those omitted from the last will, chooses to challenge the last will or estate plan in court, those non-compliant inclusions could be a problem. Each court case is unique, and judges could decide to strike only the clause or language that does not inhere to Florida state law. In other cases, the inclusion of a clause that does not comply with state law may be grounds for completely throwing out the last will.

If you want to create an estate plan that leaves nothing to your spouse, that could be grounds for having your entire last will disregarded by the courts. If you feel very strongly about disinheriting a spouse, despite state laws, it may be time to explore whether you should remain married. Those who have strong negative feelings toward their spouse may be better served in the long run by ending their marriage, as opposed to attempting to disinherit their spouse.

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