What if the husband cuts the wife out of the will? (Part 1)

Sometimes, a husband will leave a wife nothing under a will; or a wife will entirely cut out her husband from a will.
While Florida law does not prevent one spouse from leaving the other spouse nothing under a will, Florida law does provide that the surviving spouse can ‘elect’ against the will, under Florida’s Spousal Elective Share statute.
What this means is, the surviving spouse, usually the wife, can choose to receive 30% of the value of the estate; subject to some limits.  While the exact calculations can get very complicated, generally you add up everything passing under the will, and add in any property passing either by pay on death or beneficiary designation plus any gifts made within 1 year of the date of death.  So, if the husband left bank accounts, most life insurance policies, or investments to a child and cut the wife out of the will, or if the husband started transferring assets to a child shortly before he died, the surviving spouse can add those items in and claim 30% of them.  Once that number is calculated, then you compare that number with what the wife already received under most life insurance policies, real estate transfers and most other property transferred to her outside of probate. The difference between them is what she can collect from the estate or the other beneficiaries.
There’s a couple of wrinkles here, one of which is if the couple signed a prenuptial or postnuptial agreement limiting what she gets upon the husband’s death.
And, this is not limited only to the case where the husband cut the wife entirely out of the will; in a case where the husband left the wife a minimal amount under a will, or even if he left her everything under a will, but most of the assets passed outside of the will, or he gave away a lot of property right before he died, it may make sense to elect against the will.
This is a very complicated area of the law and there are very definite deadlines; certain things have to be filed within a certain period of time. And once the election is made, it is irrevocable, the wife can’t go back and change her mind later.
The point is, if you spouse cut you out of a will, or left you less than what you think you are entitled to, you need to talk to a Florida lawyer about this.  Depending on the exact facts, if your husband or wife has cut you out of the will, there are certain things that can be done even if Probate is not opened yet;   If  you are in or near The Villages, Florida, and have a question about your rights, feel free to contact my office.

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