Can you disinherit your spouse in Florida? The short answer is no, not completely. Florida law gives surviving spouses powerful protections that override what a will or trust says. Boca Raton couples, especially in second marriages and blended families, ask about these rules often. Here are the answers.
What is the elective share?
Florida’s elective share, found in Section 732.2065 and the surrounding statutes, entitles a surviving spouse to claim 30% of the deceased spouse’s “elective estate.” The elective estate is broad. It includes not just probate assets but also many non-probate transfers such as revocable trust property, certain joint accounts, payable-on-death accounts, and even some assets given away shortly before death. This design prevents a spouse from sidestepping the protection by moving everything into a trust.
Can I leave my spouse out of my will entirely?
You can write whatever you like in your will, but your surviving spouse can elect against it and still claim the 30% share. So if a Boca Raton spouse leaves everything to children from a prior marriage, the surviving spouse can override that and take the elective share instead. The election is a choice the survivor makes, and it must be filed within strict deadlines after death, generally within six months of being served with notice of administration or two years of death, whichever is earlier.
What about our Boca Raton home?
Homestead rights are separate from and in addition to the elective share. Under Article X, Section 4 of the Florida Constitution, if you are survived by a spouse, you cannot freely leave your homestead to someone else. Florida law typically gives the surviving spouse either a life estate in the home with the remainder to descendants, or the option to take a one-half tenancy in common. These protections apply regardless of what your will says.
Are there other spousal protections?
Yes. A surviving spouse may also be entitled to a family allowance, exempt property such as certain household furnishings and vehicles, and intestate share rights if there is no valid will. Stacked together, these protections mean a Florida spouse is rarely left with nothing.
Can spouses waive these rights?
They can. A valid prenuptial or postnuptial agreement can waive the elective share and homestead rights, which is common in Boca Raton’s many second marriages. To hold up, the agreement must meet Florida’s requirements, generally including full and fair financial disclosure and proper execution. A poorly drafted waiver can be set aside, leaving the protections fully in place.
Why does this matter for planning?
For blended families, the elective share can quietly upend a plan meant to favor children from a first marriage. Tools like marital trusts, life insurance, and properly drafted marital agreements can satisfy a spouse’s rights while still protecting children, but they must be coordinated. Note that none of this involves a Florida estate tax, since Florida has no state estate or inheritance tax; these are family-protection rules, not tax rules.
The bottom line
In Florida, a spouse has guaranteed rights that a will alone cannot defeat. Understanding the 30% elective share and homestead protections is essential to building a Boca Raton estate plan that does what you actually intend.
This is general information about Florida law, not legal advice. Spousal rights and waivers are highly fact-specific. Consult a licensed Florida estate planning attorney before making decisions that affect your spouse’s share.
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For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles .
