You’ve been disinherited – Now What?

Learning that you have been left out of a family member’s or friend’s will can come as a shock, and whether the omission from the will was intentional or accidental, it is one of the most common bases for will disputes.  Immediate action and consultation with a probate litigation attorney is essential on these kinds of matters.

Pretermitted heirs

One kind of disinheritance comes about when there are pretermitted heirs.  These are persons not included in the will because they did not exist at the time that the will was created – such as having an older will that was not updated after a child is born.  This is usually unintentional and is just one reason to revisit your estate plan after life-changing events such as getting married or having children to ensure they are included in your estate plan.

In Florida, spouses and children are the only ones that can be considered pretermitted heirs, and in that event, they are entitled to receive the same share of the decedent’s estate which they would under Florida’s intestacy statutes (despite the fact that there is a will).  Said differently, other beneficiaries would inherit by way of the will, while the pretermitted individuals would inherit their shares of the decedent’s estate by way of Florida law.

Because the claims of spouses and children do take precedence over other beneficiaries, this could indeed have a significant impact on the other beneficiaries’ respective shares. Just for example, a pretermitted spouse would inherit the entire estate, regardless of what the decedent’s will states.  When it comes to pretermitted children, however, there are exceptions (which can lead to litigation):

1. A pretermitted child may not inherit if they received property equivalent to their share in advance; or
2. The pretermitted child may not inherit if it is clear in the will that the omission was intentional; or
3. The decedent had one or more children at the time the will was executed and designated the other parent of the pretermitted child as the sole beneficiary of the estate and the other parent survives the decedent and is able to inherit the estate.

If you have been omitted from your spouse’s will or your parent’s will, it is imperative that you consult with a probate litigator as soon as possible with regard to your options on pursuing your inheritance.

Omission from a will may be intentional – meaning that you were not pretermitted but rather intentionally disinherited.  This is an important difference from pretermitted heirs because the probate court will typically and generally respect a decedent’s wishes as stated in a validly executed will.  So, if you have been intentionally omitted from a will, and depending on your relation to the decedent, you may have different relief available to you.

As a spouse, a decedent cannot completely disinherit you, and the probate court would typically award a significant share of the decedent’s estate to go to the spouse.  (See Fla. Stat. 732.301) This amount would be determined also by considering whether there are surviving children. Disinheritance of a spouse is possible, however, through agreement by way of an enforceable premarital agreement or postmarital agreement. Disinheritance is also provided for if you were no longer the decedent’s spouse at the time of their death, as the Florida Probate Code so provides. (see Fla. Stat. 732.703).

Disinherited children, if minors, cannot be disinherited under Florida Law.  A minor who is not included in a will may qualify as pretermitted and then inherit as provided in Florida’s intestacy statutes.  (See Fla. Stat. 732.302)  However, adult children may be disinherited too, so certainly age is a factor.  Should a minor be expressly disinherited (i.e., through the language of the will itself), Florida law would at least protect that minor child in that:

1. A parent cannot leave their primary home to anyone other than their spouse or minor child. This is a Florida public policy issue so that a minor child is not left homeless.
2. A minor child is entitled to a statutory family allowance, so as to cover living expenses during the pendency of the probate proceedings. (See Fla. Stat. 732.403)

So what do you do now?

Depending, of course, on your relationship to the decedent as a surviving spouse or a minor child, you have rights under Florida law.  These should be promptly discussed with a probate litigator.

Disinherited heirs (whom are not spouses or children) do not have legally protected rights, but they do have options, as anyone who is entitled to inherit through an estate can challenge the validity of the will which is before the probate court.  There are a handful of arguments which can be raised relative to the challenge as to a will’s validity:

First, the argument can be made on whether the will was properly executed: as the requirements for execution require technical and strict compliance, a failure to meet those requirements for executing a will can result in a determination of its invalidity.

Second, the argument can be made that the will is the product of undue influence: that one with a confidential relationship actively procured the decedent to disinherit you, to their own personal benefit.

Third, the argument can be made that the decedent lacked the requisite mental capacity at the time the will was signed, meaning that the decedent did not understand the will’s contents or its effects.

Fourth, the argument can be made that the will is either a forgery or is based on fraud, meaning that the decedent was misled or that someone forged their signature.  This is not as commonly argued as the above three arguments.

Fifth, the argument can be made that the will presented to the probate court was actually revoked by a subsequent will or codicil and thus was not the actual last will of the decedent.

It goes without saying that evidentiary support for each and every one of these arguments is necessary to support these allegations, about which your experienced probate litigator can determine whether a challenge is possible and what evidence would be necessary for such a challenge.