Does the Decedent’s Family Have any Special Rights?

Yes, the decedent’s surviving spouse and children may be entitled to receive probate assets from the probate estate. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance, even if the decedent’s will gives them nothing. For example, a surviving spouse may have the right to the decedent’s homestead property. The surviving spouse may also have the right to claim an elective share of the probate estate; this is 30% of all the decedent’s assets. Certain Florida statutes identify exempt property.

A spouse may waive his or her rights to an elective share, exempt property, or family allowance in a valid pre-marital or post-marital agreement. If the decedent got married or had additional children, after the date of the decedent’s will and the decedent did not provide for the new spouse or children, the omitted family member may still be able receive a share of the probate estate.

Except for the above, a Florida resident generally has the right to entirely disinherit anyone.

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