7 Things a Florida Will Can’t Do That Surprise Families

Writing a will can feel like having the final word on what happens next.

But Florida law sets limits that can change who ends up with what, even when the paper says otherwise.

Here’s where the law can override a will, so families face fewer surprises.

Note: This is general information, not legal advice. Probate laws are subject to change, so confirm the current rules with The Florida Bar.

1. Cutting Out a Spouse

A will can’t leave your spouse with nothing.

Your spouse can still claim the elective share, even if the will says otherwise.

That share is 30 percent of the elective estate.

If the elective estate is worth $500,000, for example, the share is $150,000.

Your spouse has to file an election to claim it.

Only your spouse can give up the right, and only in a written agreement signed before two witnesses, such as a prenuptial or postnuptial agreement.

2. Overriding a Named Beneficiary

Your will can’t change who gets a life insurance policy payable to an individual, according to The Florida Bar.

Bank accounts set to pay out on death may not be probate assets either, which means they can go to the person named instead of following your will.

Annuities and individual retirement accounts (IRAs) that name a beneficiary may also sit outside your will.

Say your will splits everything between your two kids, but your bank account pays out on your death to only one of them.

That account may go to that child alone.

3. Giving Away Your Homestead

A will can’t leave your homestead, the home Florida law protects, to just anyone if a spouse or a minor child survives you.

If you leave a spouse but no minor child, the will can leave the home only to your spouse.

When the will can’t pass the home, it follows the default rules for property left without a will.

If your spouse and your descendants survive you, your spouse gets a life estate, which means the right to live there for life.

Your descendants get the home when your spouse dies.

Your spouse can instead choose an undivided half interest, a half share of the whole home, within six months of your death.

Once your spouse makes that choice, it’s final.

4. Passing Joint Property

Even a carefully written will can’t redirect a home you own jointly with a right of survivorship.

The surviving owner takes the home because it’s outside probate and your will never reaches it.

Spouses can hold a home as tenants by the entirety, a form of ownership for married couples, and it stays outside probate the same way.

If you add your son to your bank account with survivorship rights, your will may not control that money.

5. Naming a Pet as Heir

As a general rule, a pet can't inherit money or property, so naming your dog or cat as an heir in a will falls short.

Florida law lets you create a pet trust that can cover one animal or several that are alive during your lifetime.

When the last animal dies, the trust ends.

Leftover money goes to you if you're still living, or to your estate if not, unless the trust says otherwise.

6. Paying Someone Who Causes Your Death

Someone who unlawfully and intentionally kills the person who wrote a will can't collect under it.

The same goes for anyone who helps bring about that death.

Under Florida law, the ban reaches past your will to life insurance, joint tenancy and survivorship rights, no matter who you named.

The law treats the killer as if they died before the person they killed.

A final murder conviction in any degree settles the question.

Without one, a court can still decide the killing was unlawful and intentional by the greater weight of the evidence.

7. Skipping a New Spouse or Child

A will you signed before marrying can't shut out your new spouse just by staying silent.

Your new spouse can claim a share equal to what they'd have received if you'd died without a will.

That share doesn't apply if the will provides for your new spouse, the will says you meant to leave them out, or a marital agreement covers it.

A child born or adopted after you sign can claim the same kind of share.

That share disappears if the will shows you left the child out on purpose.

It also disappears if you already had a child when you signed and left nearly everything to the other parent of the later child.

That parent has to survive you and be able to take under the will.

What a Spousal Waiver Covers

A will can't waive a spouse's rights, but a signed spousal waiver can give up more than the elective share.

Your spouse can also waive homestead rights and the preference for serving as personal representative, the person who runs the estate.