What happens when my Husband's Will is dated before we married?

Full question:

My Husband and I married 5 years ago and have one child born after our marriage. Last month my Husband died and a Will was discovered that was dated before our marriage leaving property to his children by his first marriage. Neither I nor our child is mentioned in the Will. We have not found another Will and I am not aware that he made one. We live in Florida. What are my rights?

• Category: Wills and Estates
• Date: 04/07/2025
• State: Florida

Answer:

Sorry for your loss. The law in Florida protects you and your child.  In cases where a person makes a Will and married later the spouse is still entitled to inherit even though not mentioned in the Will. However, there are three exceptions including if there was a premarital agreement, the spouse is mentioned in the Will or the Will discloses an intention not to make provision for the spouse.  

If there is a child born after making a Will, the child also has rights to inherit to the extent provided. Two exceptions also exist to this.
 

732.301 Pretermitted spouse.—When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
 

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.

The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.

732.302 Pretermitted children.—When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:
 

(1) It appears from the will that the omission was intentional; or
(2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.

The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805.
 

Reference:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html