The only way you can prevent your husband from inheriting part of your estate in Florida is to divorce him. This is true whether or not you have a will. If you don’t have a will, Florida’s laws of intestate succession, the method of disbursing property of one who dies without a will, determine your husband’s portion. If your marriage is happy and healthy, you can override these laws and leave him more than a statutory amount if you write a will.
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If You Have No Children
If you have no surviving children, either with your husband or from another relationship, he’ll usually inherit everything you own when you die. But this law is somewhat deceptive because of the word “surviving.” For example, you and your husband may have had a daughter. If your daughter predeceases you, but she never had any children of her own, your husband receives your entire estate in Florida. However, if she had a child of her own before she died, your husband does not get your entire estate. Florida law calls your children and their children your “lineal descendants.” If any of these individuals survive you, your husband receives only a portion of your assets.
If You Have Children With Your Spouse
If you leave any surviving children, grandchildren or great-grandchildren, and if they’re your husband’s descendants as well, your husband receives the first $60,000 off the top of your estate when you die. He and your lineal descendants then share the balance of your estate. For example, if your estate is worth $200,000 after payment of your funeral costs, taxes and debts, your husband would receive $60,000. He would also receive half of the $140,000 balance. His inheritance would total $130,000, or $60,000 plus $70,000. Your lineal descendants divide the remaining $70,000 “per stirpes,” meaning in equal portions based on their degree of kinship to you. If you leave two living children, they’re your direct decendants and they would each receive $35,000. However, if one of your children predeceases you, but she had two children of her own, her $35,000 share would revert to her children, not to your husband. Her two children would share her portion equally, receiving $17,500 each. Your surviving child would still receive $35,000.
If You Have Children From Another Relationship
If you leave behind any children or grandchildren from another marriage or relationship, the situation becomes more complicated. Your husband no longer receives $60,000 off the top of your estate. He receives only half its value. Florida law does not make a distinction between your children based on who their father is. The statutes treat them equally, so they all receive an equal portion of your estate, no matter which of your relationships they were born to. Therefore, if you and your husband have one child together, and if you leave two children from another relationship, your husband would receive $100,000, half your $200,000 estate. Your three children would receive approximately $33,333 each. If any of them predecease you, their children would inherit their share.
Florida’s laws of intestate succession apply until the date of your divorce decree, should you decide to terminate your marriage. They determine your husband’s share of your estate even if you’re separated and contemplating divorce, or even if one of you has filed for divorce. The only exception is if your husband causes your death. The probate court makes this determination, not a criminal court, and Florida law doesn’t hold the probate court to the same high standards. If a criminal court convicts your husband of causing your death, he would not receive any part of your estate. However, even if a criminal court acquits him, the probate court might still decide that he’s guilty, based on the “greater weight of the evidence.” In either case, if he is barred from inheriting either by divorce or because he caused your death, your entire estate would divide among your children and grandchildren.