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What are the grounds to contest a Will in Florida? Can we contest even though the Will says we can't?

What are the grounds to contest a Will in Florida? Can we contest even though the Will says we can't?

Full question:

My Mother remarried after the death of my Father. She is 74 and married a young man only 35 years old. Two weeks before she died, she changed her Will to leave everything to this man. She also included a clause in the Will stating that if anyone contested the Will they are not to receive any part of her estate even if they win. Her prior Will left everything to her children including me. What do we do in this situation?

Category: Wills and Estates
Subcategory: Will Contests
Date: 04/07/2025
State: Florida

Answer:

A Will can be challenged based on whether it meets the requirements of the Florida Probate Code as it relates to signing and execution of the Will. An example would be where there are no witnesses or the witnesses did not sign together.

Other grounds include fraud, duress, mistake and undue influence. Each of these must be proven in Court based on facts of each case.

In Florida a provision that penalizes anyone that contests a Will is not valid. Therefore, you don't have to worry about that provision in the Will.

If successful the prior Will will be revived in most cases.

The relevant provisions of the Florida Probate Code are below.

732.5165 Effect of fraud, duress, mistake, and undue influence.—A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

732.517 Penalty clause for contest.—A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

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

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How long would a decedent and spouse have to be married for the surviving spouse to be entitled to an elective share percentage of 50 percent of the augmented estate?

In Florida, a surviving spouse is entitled to an elective share of 30 percent of the augmented estate, regardless of the length of the marriage. However, if the couple has been married for more than two years, the surviving spouse may have additional rights. The elective share allows the spouse to claim a portion of the estate even if the deceased spouse's Will states otherwise. It's important to consult with an attorney for specific situations and guidance regarding the elective share. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

When a parent dies does the spouse get everything?

In Florida, when a parent dies, the surviving spouse does not automatically receive everything. The distribution of the estate depends on whether there are surviving children. If there are children from the deceased, the spouse typically receives a portion of the estate, while the children inherit the rest. If there are no children, the spouse may inherit the entire estate. The specifics can vary based on the Will and other factors, so it's advisable to seek legal guidance. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Are children from previous marriage entitled to inheritance?

Yes, in Florida, children from a previous marriage are entitled to inheritance rights. If a parent dies without a Will, the children inherit a portion of the estate, regardless of the surviving spouse. If there is a Will, it must explicitly state how the estate is to be divided. However, if the Will excludes children from a previous marriage, they may still have rights under Florida law, especially if the Will does not comply with legal requirements. Consulting an attorney can help clarify specific inheritance rights. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Can a husband leave his wife out of his will?

In Florida, a husband can leave his wife out of his Will, but she may still have rights to an elective share of the estate. The elective share allows a surviving spouse to claim 30 percent of the augmented estate, even if the Will states otherwise. If the husband has children, the distribution could be affected by their presence. It's important for spouses to understand their rights and consult with a legal professional if they have concerns about inheritance. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Does a will override a marriage?

In Florida, a Will does not override marriage in terms of inheritance rights. A surviving spouse has certain rights, including the right to an elective share of the estate, which is 30 percent of the augmented estate. This means that even if a Will excludes the spouse, they may still be entitled to a portion of the estate. It's crucial to understand these rights and consult with an attorney for specific advice regarding estate planning and inheritance. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*

Will a will override marriage?

In Florida, a Will does not override the legal rights of a surviving spouse. Even if a Will states that a spouse is excluded from inheritance, the spouse may still claim an elective share of 30 percent of the augmented estate. This right ensures that a spouse is protected, regardless of the deceased's wishes expressed in the Will. It's important to consult with an attorney to understand how these laws apply to your specific situation. *Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.*