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What Do You Mean I Cannot Disinherit My Spouse?

disinherit your spouse

If you are considering getting married or re-married or you are already married, you might think that you don’t want to leave an inheritance for your future spouse or spouse when you die.  You might have this thought because you have children from a prior marriage, or your spouse is financially comfortable, or you don’t want your spouse’s children to benefit. Well, you might be surprised to learn that you cannot disinherit your spouse in Florida UNLESS you have a prenuptial agreement or postnuptial agreement that satisfies the legal requirements.  Otherwise, your spouse is entitled to receive 30% of all your assets (you cannot leave less than this amount, but you can leave more). This is called the ‘elective share.’

‘Assets’ that are subject to the elective share include:

  • probate assets;
  • non-probate assets (i.e. assets titled in the name of a revocable trust or have a joint owner, ​including the surviving spouse);
  • real estate;
  • investments;
  • life insurance proceeds;
  • bank accounts;
  • stocks, bonds;
  • even assets that designate a beneficiary.

What can you do if the reason you are considering disinheriting your spouse is due to your spouse being diagnosed with a chronic illness or disease?  What if your concern is that your spouse will not be able to manage their inheritance, or you want your spouse to qualify for government benefits such as Medicaid or Veteran Aid & Attendance benefits? A great planning option is to have an experienced elder law attorney prepare a special needs trust to hold your spouse’s inheritance and write it in your Last Will and testament.  The special needs trust will:

  • Designate a trusted person as Trustee to manage the assets for the benefit of your surviving spouse;
  • Designate a trusted person to serve as Alternate Trustee if the primary Trustee becomes incapacitated, dies, or resigns;
  • Allow your spouse to qualify for government benefits since the special needs trust assets will not be countable;
  • Designate a beneficiary to receive any remaining trust assets when your surviving spouse dies.

Before you meet with a qualified, experienced elder law attorney, make a list of your questions as well as your goals.  I look forward to the opportunity to educate you and help you create a plan to meet your goals.

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