Can You Disinherit a Spouse or Minor Child in Florida?

The homestead rule

Florida’s Constitution says the homestead may not be devised if the owner is survived by a spouse or minor child, except that it may go to the spouse if there is no minor child (Art. X, § 4(c)). The rule reaches a revocable trust too (§ 732.4015).

If the homestead is not validly devised, the surviving spouse takes a life estate with the remainder to the decedent’s descendants, or can elect within 6 months after the death to take an undivided half interest as tenant in common instead (§ 732.401). Property held as tenants by the entireties or joint with right of survivorship passes outside these rules.

The elective share

A surviving spouse of a Florida domiciliary can elect to take 30% of the elective estate (§§ 732.201, 732.2065). The elective estate is broader than the probate estate; it can reach revocable trusts, joint accounts, POD accounts and other non-probate transfers.

The election must be filed by the earlier of 6 months after service of the notice of administration or 2 years after the death (§ 732.2135). Missing that deadline forfeits the right.

Other spousal protections

• Exempt property (§ 732.402): household furniture and furnishings up to $20,000, two motor vehicles, 529 plans and certain other benefits go to the spouse, or to the children if there is no spouse.
• Family allowance (§ 732.403): up to $18,000 for the spouse and lineal heirs the decedent was supporting.
• Pretermitted spouse (§ 732.301): a spouse married after the will was signed takes an intestate share unless a prenuptial or postnuptial agreement addressed it, the will provides for the spouse, or the will shows an intent to leave the spouse out.

The one real way out: a written waiver

A spouse can waive the elective share, intestate share, pretermitted share, homestead rights, exempt property and family allowance by a written agreement signed in the presence of two subscribing witnesses (§ 732.702). No disclosure is required if the waiver is signed before marriage. If it is signed after marriage, fair disclosure is required. A spouse can also waive the homestead devise restriction in a deed using statutory language (§ 732.7025).

What does not work: drafting around the spouse with a trust or deed without a waiver. Plans that try to cut out a stepparent without a valid waiver are a common source of litigation.

Children

Florida has no forced share for children. An adult child can be left out entirely, and so can a minor child as to property other than the homestead. A minor child still benefits from the homestead restriction, may share in exempt property if there is no spouse, and may receive the family allowance if the decedent was supporting the child. A child born or adopted after the will may be protected by the pretermitted child rule (§ 732.302).

Lessons

• A Florida spouse cannot be disinherited without a valid written waiver.
• Homestead cannot be left away from a surviving spouse or minor child.
• The 30% elective share reaches trusts and non-probate assets, and has a strict deadline.
• Adult children have no forced share.

Source: Florida Constitution, Art. X, § 4, Florida Senate

Source: Fla. Stat. § 732.702 (2026), Florida Senate

Source: Fla. Stat. § 732.2065 (2026), Florida Senate

Watch the Video

Can You Disinherit a Spouse or Minor Child in Florida?

Go Deeper

• Florida Surviving Spouse Homestead Rights
• Florida Elective Share: The 30% Rule and the Deadline
• Stepchildren, Blended Families and Inheritance in Florida

Frequently Asked Questions

Can I leave my spouse out of my will in Florida?

You can leave a spouse out of the will, but without a valid written waiver the spouse can still claim homestead rights, a 30% elective share, exempt property and a family allowance.

Can I leave my house to my children instead of my spouse?

Not if it is your homestead and your spouse survives you, unless your spouse has validly waived homestead rights. Otherwise the spouse takes a life estate or can elect a one-half interest.

Can I disinherit an adult child in Florida?

Yes. Florida has no forced share for adult children.

How long does a surviving spouse have to claim the elective share?

The earlier of 6 months after service of the notice of administration or 2 years after the death, under § 732.2135.

Talk to a Florida probate litigation lawyer

Weidner Law, P.A. handles Florida probate, trust, guardianship and elder-exploitation disputes from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.

Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.

This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.