I get asked this question a lot. The general rule is that in your Last Will and Testament, you can dictate who gets your property after your death. The surprising fact is that in Florida and New York you cannot intentionally disinherit your spouse unless he or she agrees in writing to be disinherited (through a prenuptial agreement or postnuptial agreement).
To make matters worse, the laws governing spousal rights at death, called elective share laws, depend on whether or not the deceased spouse leaves any assets that need to be probated. A disinherited spouse can elect to take a portion of the deceased spouse’s probate estate and some, but not all, non-probate assets.
The surviving spouse has rights when it comes to getting a share of the deceased spouse’s estate, even if the surviving spouse has been completely cut out of the deceased spouse’s Last Will and Testament or Revocable Living Trust. This is especially true with the homestead laws that prohibits a spouse from devising the property by will if the decedent is survived by a spouse. If such a devise is made, it is deemed invalid, and the surviving spouse will enjoy a life estate with the remainder to the decedent’s children. The surviving spouse may elect to take a fifty percent interest instead of the life estate as long as the election is made within six months of the homeowner’s death.
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