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Wills for Single Floridians: How Much Will Future Spouses and Children Inherit?

I previously wrote a posting that provided an overview as to when a pretermitted spouse (a person who marries a testator–a person who has made a will–after the testator executes a valid will) or a pretermitted child (a child born or adopted after the testator has executed a valid will) will inherit.  This posting will address how much a pretermitted spouse or child will inherit.

1) Review of Law Regarding Pretermitted Spouse and Children.

Fla. Stat. § 732.507(1) provides that a marriage, birth, or adoption after the execution of a will does not revoke the will.  Instead, a pretermitted spouse inherits as provided in Fla. Stat. § 732.301 and a pretermitted child inherits as provided in Fla. Stat. § 732.302.

As mentioned in the previous posting, in general, if a testator (a person who has made a will) marries after making a will and the spouse survives the testator, the spouse will receive a share equal to that which the spouse would receive if the testator died without a will. Fla. Stat. § 732.301.  In addition, in general, if a testator’s child is born or adopted after making the will and the child has not been advanced his share, the child will receive a share equal to that which the child would receive if the testator died without a will. Fla. Stat. § 732.302.  Property not effectively disposed of by will is referred to as “intestate.”  See Fla. Stat. § 732.101(1).

2) Law Regarding Pretermitted Spouse’s and Children’s Shares of Estate.

a) If a decedent (a person who dies) is survived by a pretermitted spouse and no surviving descendants, the pretermitted spouse will inherit the decedent’s entire estate. Fla. Stat. § 732.102(1).

b) If a decedent is survived by a pretermitted spouse and one or more descendants, all of whom are also descendants of the pretermitted spouse, and the pretermitted spouse has no other descendants, the pretermitted spouse will inherit the entire estate. Fla. Stat. § 732.102(2).  In this situation, the descendants of the decedent, including pretermitted children, do not inherit anything.  See Fla. Stat. §§ 732.102(2)732.103(1).

c) If a decedent is survived by a pretermitted spouse and one or more descendants, at least one of of whom is not also a descendant of the pretermitted spouse, the pretermitted spouse will inherit the one-half of the estate. Fla. Stat. § 732.102(3).  The descendants of the decedent, including pretermitted children, will inherit the remaining one-half of the estate. See Fla. Stat. §§ 732.102(3)732.103(1).

d)  If a decedent is survived by a pretermitted spouse and one or more descendants, all of whom are also descendants of the pretermitted spouse, and the pretermitted spouse has one or more descendant who are not descendants of the decedent,  the pretermitted spouse will inherit the one-half of the estate. Fla. Stat. § 732.102(4).  The descendants of the decedent, including pretermitted children, will inherit the remaining one-half of the estate. See Fla. Stat. §§ 732.102(4)732.103(1).

 Click here for a very useful flowchart by my colleague David A. Shulman on Fla. Stat. §§ 732.102 and  732.103.

 

Want to further discuss these issues?  Contact me at 954-944-3929 or nrumbak@rumbaklaw.com.

*This document contains legal information, but does not contain legal advice.

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