Can a Surviving Spouse Be Disinherited in Florida? Understanding Elective Share Rights

Updated October 2026

by Thomas C. Walser, Probate and Estate Planning Attorney (40+ Years of Experience)

When someone passes away, their surviving spouse may be surprised to discover that they were left out of the will or received significantly less than expected.

This situation is especially common in second marriages, blended families, or situations where a person wants to leave most of their assets to children from a previous relationship.

But can you legally disinherit your spouse in Florida?

In many cases, Florida law protects surviving spouses by giving them the right to claim a portion of their deceased spouse's estate, even if the will says otherwise.

This protection is known as the Florida elective share.

At Walser Law Firm, we have more than 40 years of experience helping families navigate Florida probate and estate planning. Here's what surviving spouses and families should understand about inheritance rights, elective shares, and the probate process.

1. Can You Disinherit Your Spouse in Florida?

Generally, a married person cannot completely eliminate their surviving spouse's statutory inheritance rights simply by leaving them out of a will.

Florida law provides protections that may allow a surviving spouse to receive a portion of the deceased spouse's estate, regardless of the terms of the will.

These protections can include:

• The right to claim an elective share
• Certain homestead property rights
• Rights to exempt property
• A potential family allowance
• Inheritance rights when someone dies without a will

However, these rights are not absolute.

A surviving spouse may have waived certain inheritance rights through a valid prenuptial agreement, postnuptial agreement, or another legally enforceable waiver.

2. What Is the Elective Share in Florida?

The elective share is a legal protection designed to prevent a surviving spouse from being completely excluded from a deceased spouse's estate.

Under Florida law, an eligible surviving spouse may elect to receive 30% of the deceased spouse's elective estate.

Importantly, the elective estate is not necessarily the same as the probate estate.

Depending on the circumstances, the elective estate may include certain assets that pass outside probate.

This distinction is important because transferring property into a trust or naming beneficiaries does not automatically eliminate elective share rights.

The purpose of the elective share is to provide a minimum statutory inheritance protection for eligible surviving spouses.

3. How Is the Florida Elective Share Calculated?

Florida's elective share is calculated using the value of the elective estate, which may include several categories of assets.

Depending on the circumstances, these may include:

• Assets owned individually by the deceased spouse
• Certain jointly owned property
• Certain trust assets
• Some retirement accounts
• Certain life insurance interests
• Other property included under Florida law

For example, suppose a deceased spouse has an elective estate valued at $1 million.

The basic elective share calculation would be:

$1,000,000 × 30% = $300,000

However, this does not necessarily mean the surviving spouse will receive an additional $300,000 in cash.

Certain property interests and benefits already received by the surviving spouse may count toward satisfying the elective share.

The actual calculation can be complicated and may require identifying, valuing, and accounting for assets both inside and outside probate.

4. Does a Will Override a Surviving Spouse's Elective Share?

Generally, no.

A will cannot automatically eliminate an eligible surviving spouse's elective share rights.

For example, a husband may leave his entire estate to his children from a previous marriage.

Even though the will does not provide for his current wife, she may still have the right to claim an elective share.

However, the spouse must take the appropriate legal steps to exercise that right.

The elective share is not automatically awarded simply because a surviving spouse was excluded from a will.

A timely election and compliance with Florida probate procedures are generally required.

5. Can a Trust Prevent a Spouse From Claiming an Elective Share?

Not necessarily.

Some individuals believe that transferring assets into a Revocable Living Trust will prevent a surviving spouse from making an inheritance claim.

However, Florida's elective share laws can include certain trust assets and other non-probate property.

This means that creating a trust does not automatically eliminate the surviving spouse's statutory rights.

Trusts can still be valuable estate planning tools, but they must be coordinated with applicable spousal inheritance protections.

6. Can a Prenuptial Agreement Waive Elective Share Rights?

Yes.

Florida law allows spouses to waive certain inheritance rights through a valid written agreement.

These agreements may include:

• Prenuptial agreements
• Postnuptial agreements
• Marital settlement agreements
• Other qualifying written waivers

However, the agreement must satisfy applicable legal requirements.

Florida generally requires a qualifying waiver to be signed by the waiving spouse in the presence of two subscribing witnesses, subject to statutory exceptions.

For agreements executed after marriage, Florida law also requires fair disclosure of the other spouse's estate.

Because an improperly prepared agreement may create legal disputes, spouses should obtain legal guidance before signing or relying on a waiver of inheritance rights.

7. What Happens If Someone Dies Without a Will in Florida?

When someone dies without a valid will, Florida's intestacy laws determine how their probate assets are distributed.

A surviving spouse may inherit all or part of the intestate estate, depending on the family circumstances.

For example, the result can differ depending on whether the deceased person had children from another relationship.

The spouse's intestate inheritance rights are separate from the elective share rules, although the two can interact.

Understanding the difference is important when determining what a surviving spouse is legally entitled to receive.

8. Does Florida Homestead Law Protect a Surviving Spouse?

Yes, in many circumstances.

Florida homestead law provides special protections that can affect what happens to a primary residence after its owner's death.

If a deceased homeowner is survived by a spouse or minor child, restrictions may apply to how the homestead property can be transferred at death.

Depending on the circumstances, a surviving spouse may receive a life estate or may have the option to elect an undivided one-half interest in the property.

Homestead rights are separate from the elective share, and the two sets of rules should be evaluated together.

A valid waiver, the existence of descendants, and the property's ownership arrangement can significantly affect the outcome.

9. How Long Does a Surviving Spouse Have to Claim an Elective Share?

Florida law establishes strict deadlines for making an elective share election.

Generally, the election must be filed by the earlier of:

• Six months after service of the notice of administration on the surviving spouse or an authorized representative; or
• Two years after the deceased spouse's death.

Florida law allows certain extensions under specific circumstances, but an extension must be properly requested and is not guaranteed.

Missing the applicable deadline may prevent the surviving spouse from exercising the elective share right.

Because the timing can be complicated, surviving spouses should consult a Florida probate attorney as soon as possible after learning about the estate.

10. What If the Deceased Spouse Left Everything to Children From a Previous Marriage?

This situation frequently arises in blended families.

A person may want their children from a prior relationship to inherit most or all of their property.

However, Florida's elective share protections may allow the surviving spouse to claim a portion of the elective estate, even if the will or trust names only the children.

This can create disagreements between the surviving spouse and other beneficiaries.

Potential issues include:

• Determining which assets belong to the elective estate
• Valuing trusts and other financial accounts
• Reviewing prenuptial or postnuptial agreements
• Determining whether inheritance rights were waived
• Calculating how the elective share should be satisfied

Careful estate planning can help families understand these issues before they become disputes.

11. Can a Surviving Spouse Contest a Will in Florida?

Potentially, yes.

However, contesting a will and claiming an elective share are two different legal actions.

A will contest may involve allegations such as:

• Lack of testamentary capacity
• Undue influence
• Fraud
• Improper execution

An elective share claim generally focuses on the surviving spouse's statutory right to receive a portion of the elective estate.

A surviving spouse may have elective share rights even when the deceased spouse's will is otherwise valid.

An experienced Florida probate attorney can help determine which legal options may apply.

12. How Can Estate Planning Prevent Spousal Inheritance Disputes?

Proper estate planning can help individuals protect their spouses while also providing for children and other beneficiaries.

Important steps may include:

Reviewing your will and trust. Make sure your estate planning documents reflect your current wishes and comply with Florida law.

Understanding elective share rights. Consider how statutory spousal protections may affect your intended distributions.

Reviewing beneficiary designations. Retirement accounts, life insurance policies, and other assets should be coordinated with your overall estate plan.

Evaluating marital agreements. A properly prepared agreement may help clarify each spouse's financial and inheritance rights.

Planning for blended families. Second marriages and children from prior relationships may require additional planning.

Consulting an experienced Florida estate planning attorney. Professional guidance can help reduce the risk of unintended inheritance consequences.

Frequently Asked Questions

Can a husband leave his wife out of his will in Florida?

Yes, a person may write a will that does not provide for their spouse. However, an eligible surviving spouse may still have statutory inheritance rights, including the right to claim an elective share.

What percentage of an estate is a surviving spouse entitled to in Florida?

An eligible surviving spouse may elect to receive 30% of the elective estate. The elective estate may include certain assets outside probate, and benefits already received by the spouse may count toward the amount owed.

Can a wife be disinherited if there is a prenuptial agreement?

Potentially. A valid prenuptial agreement may waive elective share rights and other spousal inheritance protections. The agreement must satisfy applicable legal requirements.

Does the elective share apply to a living trust?

Certain trust assets may be included in the elective estate. Placing assets into a trust does not automatically eliminate a surviving spouse's elective share rights.

Can a surviving spouse claim an elective share after probate closes?

Elective share claims are subject to strict filing deadlines and procedural requirements. Waiting until an estate is closed may create significant legal obstacles.

Is the elective share the same as inheriting under Florida intestacy laws?

No. Intestacy laws govern the distribution of probate assets when someone dies without a valid will. The elective share provides a separate statutory protection for eligible surviving spouses.

Can a surviving spouse receive homestead property in addition to an elective share?

Potentially, yes. Florida provides separate homestead protections, although the value of certain interests may affect how the elective share is calculated and satisfied.

Why Families Choose Walser Law Firm

Disputes involving a surviving spouse's inheritance rights can create significant financial and emotional challenges for families.

For more than 40 years, Walser Law Firm has helped Florida families navigate probate, estate administration, and estate planning.

Led by Thomas C. Walser, a former CPA with a Master's Degree in Estate Planning, our firm has handled more than 4,000 probate matters, including over 1,000 Summary Administration cases.

Our probate paralegals have more than 50 years of combined experience, and we assist families with probate matters throughout all 67 Florida counties.

Whether you have questions about elective share rights, a deceased spouse's will, a prenuptial agreement, or protecting your family's inheritance, our team can help you understand your legal options.

Contact Walser Law Firm today to schedule a consultation with an experienced Florida probate and estate planning attorney.