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What if my spouse cut me and our children out of the estate plan?

There may be a variety of reasons for a person to completely cut his or her spouse and children out of his or her will. Whatever the decedent’s reasons, it may come as a shock to the family to learn that they are to receive nothing, especially if the decedent left behind a substantial estate. If the decedent was the sole source of income, the family may be left destitute.

However, there may be options to prevent this from happening. Notwithstanding the terms of the will, immediate family may have rights under Florida law to receive a portion of the estate.

For instance, the decedent’s surviving spouse may have a claim on the decedent’s homestead real property. As we have discussed in the past on this blog, in Florida the “homestead” is the decedent’s primary residence. It is protected from forced sale to pay off creditors, and the surviving family may be able to avoid getting thrown into the street.

In addition, the surviving spouse may be able to claim an “elective share” of the estate. This is generally 30 percent of the decedent’s assets, including things that are not included in the estate. If the decedent did not remember his or her family in his or her estate plan, getting the elective share could make a serious difference in the lives of the surviving family.

A family allowance may also be available out of the estate’s funds, before the final distribution of assets.

Basically, a deceased’s spouse and children do not necessarily have to be left with nothing under state law. A probate attorney can help explain your options in your particular case in greater detail.

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