What Are Your Options if You Have Been Left Out of the Will?

Tue Jan 31, 2023 | Estate Planning |

It can come as quite a shock to discover that you have been left out of a family member’s will. Whether it was intentional or by accident, this is one of the most common causes of will disputes. To protect your rights, you need to take immediate action and speak with a probate litigation attorney as soon as possible. 

Pretermitted Heirs

Pretermitted heirs are ones that are not included in the will because they were not in existence at the time that the will was created. While it can sting, it is usually unintentional and the result of poor estate planning. The deceased drafted a will and neglected to update it to include their new spouse or subsequent children. 

Under Florida law, only spouses and children can be considered pretermitted heirs. In the event that they are determined to be pretermitted, then they are entitled to receive the same share of the decedent’s estate that they would under Florida’s intestate succession laws even though there is a will. 

 In other words, other beneficiaries would inherit their shares via operation of the will, while the pretermitted heirs would inherit their shares via operation of law. Because the claims of spouses and children take precedence over other beneficiaries, this could have a significant impact on the shares of other beneficiaries. For example, the pretermitted spouse would inherit the entire estate regardless of the will. However, there are exceptions, at least for pretermitted children: 

  1. The 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. 

These exceptions can lead to litigation. For example, beneficiaries may claim that the pretermitted child received their share when the decedent paid for their schooling or helped them start a business. 

If you have discovered that you have been left out of your spouse’s or parent’s will, you should speak with a probate litigation attorney to discuss your options as soon as possible. 

Disinherited Heirs 

Disinherited heirs are those that were intentionally left out of the will. This is an important difference from pretermitted heirs because, generally speaking, the courts will respect the wishes of the decedent reflected in a validly executed will. As a result, you may have few options if you have been intentionally left out of the will, depending on who you are in relation to the decedent. 

Disinherited Spouses

A decedent cannot completely disinherit someone who was their current spouse at the time of their death. In this situation, the court will step in and award them a significant share of the estate, determined by whether there are surviving children. The only way to disinherit a spouse is through stipulation in an enforceable pre- or postnuptial agreement. 

Of course, you may be disinherited if you were no longer the decedent’s spouse at the time of their death. 

Disinherited Children

The age of the disinherited child will be a critical factor. Adult children (18 and older) may be disinherited, but Florida law prohibits minor children from being disinherited. As discussed above, a minor child who is simply omitted from the will may qualify as a pretermitted heir and inherit a share pursuant to the laws of intestate succession. 

The situation becomes more complicated if the minor child was expressly disinherited through a disinheritance clause. While they may not be able to inherit as large of a share as a pretermitted child, Florida law does offer some protection: 

  • A parent cannot leave their primary residence to anyone other than their surviving spouse or minor children in order to prevent the minor child from becoming homeless.
  • The minor child is entitled to claim a family allowance to pay their living expenses while the estate is being settled.   

Whether you are the child or the spouse of the decedent, you may still have some options if you have been disinherited. An experienced probate litigation attorney can review your case and determine what you can do to take action. 

So What Can You Do?

Your options will depend on your situation and your relationship to the decedent. If you are the decedent’s spouse or child, you do have rights under the law that might be protected by the court if they are aware of the issue. To guarantee that your rights are protected, however, it is best to speak with a probate litigation attorney. 

Other disinherited heirs do not have rights protected by law, but that does not mean that they do not have options. Anyone who might be entitled to inherit through the estate can challenge the validity of the will. There are several different arguments that can be raised to challenge the validity of the will: 

  • The will was improperly executed – failing to meet the technical requirements for executing a will can result in it being deemed invalid. 
  • The will was the product of undue influence – another person improperly influenced the decedent to disinherit you to their personal benefit. 
  • The decedent lacked mental capacity at the time the will was signed – the decedent did not understand the contents of their will or did not understand the effect it would have.
  • The will is a forgery or based on fraud – the decedent was misled or someone forged their signature.
  • Revocation – the will that has been admitted to probate was actually revoked by a subsequent will or codicil. 

Of course, you will need evidence to support your claim. An experienced probate litigation attorney will be able to determine whether you can challenge the will and know what evidence you will need. 

Contact a Probate Litigation Attorney at Ellis Law Group if You Have Been Left Out of the Will 

The team at Ellis Law Group has deep experience in handling all types of probate issues and disputes, from simple to complex. To discuss your case and how we can help, contact us today at 561-910-7500 to schedule a consultation.

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