Disinheriting a child in Florida: what the law allows, protected homestead and how to draft it
Florida lets a parent leave a child nothing by will, with limits: the homestead restrictions, after-born children, exempt property, the family allowance and assets that pass by beneficiary designation. Each rule below links to the statute, with the contest deadlines.
A Florida parent can leave a child nothing. Chapter 732 gives a surviving spouse an elective share equal to 30 percent of the elective estate (§ 732.2065, Fla. Stat. (2026)) and contains no elective share for children. The protections that can reach a child are narrower, and Table 1 lists each one.
The rules differ for a minor child (under 18, § 731.201) and an adult child, and they depend on whether the parent is survived by a spouse. This page cites the 2026 Florida Statutes for every rule. The Sources section lists each cite, last checked October 17, 2026.
| Protection | When it applies | What the child can get | Source |
|---|---|---|---|
| Homestead devise restriction | The owner is survived by a spouse or minor child | The homestead cannot be devised, except to the spouse when there is no minor child. It descends under § 732.401. | Art. X, § 4(c), Fla. Const.; § 732.4015; § 732.401 |
| Pretermitted child | The child was born or adopted after the will was signed and the will does not provide for the child | An intestate share, unless the will shows the omission was intentional or a stated exception applies | § 732.302; § 732.507(1) |
| Exempt property | The decedent left no surviving spouse | Household furniture and furnishings up to a net value of $20,000, two motor vehicles, qualified tuition programs and certain benefits, unless specifically devised | § 732.402 |
| Family allowance | The decedent left a surviving spouse, or was supporting or obligated to support a lineal heir | A reasonable allowance for maintenance during administration, not more than $18,000 in total | § 732.403 |
A stepchild, foster child or grandchild is not a "child" under § 731.201, which excludes any person who is only a stepchild, foster child, grandchild or more remote descendant.
What a will can do
- Leave a child nothing, or less than other children. Nothing in chapter 732 requires equal shares among children.
- Name the takers of the whole estate. Any part of the estate not effectively disposed of by will passes to the heirs (§ 732.101(1)), and descendants of the decedent come first among them when there is no surviving spouse (§ 732.103(1)). A residuary clause with alternate takers keeps property out of intestacy.
- Use a trust to limit control. A spendthrift provision restrains both voluntary and involuntary transfer of the beneficiary's interest (§ 736.0502). A beneficiary's creditor cannot compel a discretionary distribution (§ 736.0504).
- Attach conditions. A trust must have a purpose that is lawful, not contrary to public policy, and possible to achieve (§ 736.0105(2)(c)). A condition has to meet that test.
- Not use a penalty for contesting. A will provision that penalizes an interested person for contesting the will is unenforceable (§ 732.517). The same rule applies to a trust instrument (§ 736.1108(1)).
Drafting points
| Point | Reason | Source |
|---|---|---|
| Name each child and state that the omission is intentional | A pretermitted child takes unless it appears from the will that the omission was intentional. The test is what the will itself shows. | § 732.302(1) |
| Address children who might be born or adopted later | Birth or adoption does not revoke a will, so the pretermitted-child rule applies regardless of the prior will. | § 732.507(1) |
| Include a complete residuary clause | Property not effectively disposed of by will passes to heirs, and descendants are first in line. | § 732.101(1); § 732.103(1) |
| State whether the child's own descendants take | If a devisee who is a descendant of a grandparent of the testator fails to survive, a substitute gift goes to the devisee's descendants unless a contrary intent appears in the will. Words of survivorship show contrary intent. | § 732.603(1), (3)(a) |
| Execute the will correctly | Signed at the end and witnessed by at least two attesting witnesses who sign in the presence of the testator and each other. | § 732.502(1) |
| Execute a revocable trust with will formalities if it carries the plan | Provisions that take effect at death in favor of anyone other than the settlor's estate are invalid unless the trust was executed with will formalities. | § 736.0403(2)(b) |
| Skip a penalty clause | It is unenforceable in a will and in a trust. | § 732.517; § 736.1108 |
| Match the beneficiary forms | Accounts, insurance and plans pass by designation, not by the will (Table 5). | See below |
Pretermitted children
When a testator omits to provide by will for a child born or adopted after making the will, and the child has not received an equivalent part by way of advancement, the child takes a share equal to what the child would have received if the testator had died intestate. There are two exceptions: it appears from the will that the omission was intentional, or the testator had one or more children when the will was signed and devised substantially all of the estate to the other parent of the pretermitted child, who survived and is entitled to take (§ 732.302, Fla. Stat. (2026)). The share is satisfied under § 733.805.
The rule covers only children born or adopted after the will. A child who was alive when the will was signed and was left out is not pretermitted under § 732.302. For a child omitted by a will signed before marriage, see the pretermitted spouse and child guide.
| Facts | Result | Source |
|---|---|---|
| Child born after the will; will says nothing about future children | The child takes an intestate share | § 732.302 |
| Child born after the will; the will states that future children are intentionally not provided for | No share, because the will shows an intentional omission | § 732.302(1) |
| Testator had a child when signing and left substantially everything to the other parent, who survives and takes | No share for the later child | § 732.302(2) |
| Child received an equivalent part by advancement | No pretermitted share | § 732.302 |
Homestead and a minor child
The Florida Constitution provides: "The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child" (Art. X, § 4(c), Fla. Const.). Section 732.4015 repeats the rule. For this purpose the "owner" includes the grantor of a revocable trust, and "devise" includes a disposition by trust of the part of the trust estate that would be homestead if titled in the grantor's name (§ 732.4015(2)).
| Owner is survived by | Can the owner devise it? | Result if not devised | Source |
|---|---|---|---|
| Spouse and a minor child | No | Descends as intestate property. With a spouse and descendants, the spouse takes a life estate and the descendants in being take the vested remainder per stirpes. The spouse may instead elect, within 6 months, a one-half interest as a tenant in common. | § 732.4015(1); § 732.401(1), (2) |
| Spouse and adult children only | Only to the spouse | Same descent as above when not devised to the spouse | § 732.4015(1); § 732.401 |
| A minor child and no spouse | No | Descends as other intestate property, descendants first | § 732.401(1); § 732.103(1) |
| Adult children only, no spouse | Yes, to anyone | The will controls | Art. X, § 4(c) |
The descent rule does not apply to property the decedent held as tenant by the entireties or in joint tenancy with right of survivorship (§ 732.401(5)). The constitutional protection covers 160 contiguous acres outside a municipality or one-half acre inside one (Art. X, § 4(a)(1)). The owner, joined by the spouse if married, may still mortgage, sell or give the homestead during life (Art. X, § 4(c)). See the Lady Bird deed guide and the homestead guide.
Exempt property and the family allowance
If there is no surviving spouse, the decedent's children have the right to exempt property: household furniture, furnishings and appliances at the usual place of abode up to a net value of $20,000, two motor vehicles of up to 15,000 pounds, qualified tuition programs and certain benefits (§ 732.402(1), (2)). Exempt property is in addition to property passing under the will, but property specifically or demonstratively devised is not included (§ 732.402(4), (5)). The right is waived unless a petition is filed by the later of 4 months after service of the notice of administration or 40 days after a proceeding about the will ends (§ 732.402(6)).
The family allowance goes to the surviving spouse and to the lineal heirs the decedent was supporting or was obligated to support. It may not exceed $18,000 in total and is paid for maintenance during administration (§ 732.403). A dependent minor child can qualify.
Assets that pass outside the will
| Asset | Who takes | Source |
|---|---|---|
| Pay-on-death bank account | The surviving beneficiary. The account is not part of the estate. | § 655.82(3)(b) |
| Life insurance | The person designated in the policy. Proceeds payable to the insured's estate become part of the estate. | § 222.13(1) |
| Employer retirement plan covered by ERISA | The plan administrator pays the beneficiary named under the plan documents. | Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009) |
| IRA | The beneficiary the IRA owner named. A designated beneficiary who is not an eligible designated beneficiary must withdraw the entire balance by the end of the 10th year after the owner's death. | IRS Publication 590-B (2025) |
| Property in a revocable trust | The beneficiaries named in the trust terms. The trust remains liable for the estate's expenses and obligations if the estate cannot pay. | § 733.707(3); § 736.05053 |
A child who is still named on a form takes that asset whatever the will says. Review each form when the plan changes.
How a disinherited child can challenge
A disinherited child is an "interested person" if the child may reasonably be expected to be affected by the outcome of the proceeding (§ 731.201). Notice goes to the surviving spouse, beneficiaries, the trustee and qualified beneficiaries of a revocable trust when each trustee is also a personal representative, and persons who may be entitled to exempt property. The personal representative may also serve heirs or others who claim an interest (§ 733.212(1)).
| Challenge | Ground or basis | Deadline | Source |
|---|---|---|---|
| Will: fraud, duress, mistake or undue influence | Void if execution was procured by fraud, duress, mistake or undue influence | 3 months after service of the notice of administration on the objector, and no later than the earlier of final discharge or 1 year after service | § 732.5165; § 733.212(2)(c), (3) |
| Will: execution formalities | Execution that does not meet § 732.502 | Same 3-month and 1-year limits as the row above | § 732.502; § 733.212(3) |
| Revocable trust | Void if created, amended or restated by fraud, duress, mistake or undue influence | Barred if not commenced within the earlier of the chapter 95 time or 6 months after the trustee sends a copy of the trust and a notice | § 736.0406; § 736.0604 |
| Exempt property | Entitlement under § 732.402 | Petition by the later of 4 months after service of the notice of administration or 40 days after a will proceeding ends | § 732.402(6) |
| Pretermitted share | Child born or adopted after the will | Raised in the administration. Section 732.302 states no separate deadline. | § 732.302 |
See the will contest guide for the procedure. The 3-month period can be extended only for estoppel based on a misstatement by the personal representative about the time period (§ 733.212(3)).
Alternatives to full disinheritance
- Discretionary trust. The trustee decides distributions, and the beneficiary's creditor cannot compel one (§ 736.0504(2)).
- Spendthrift trust. Restrains transfer of the beneficiary's interest, voluntary or involuntary (§ 736.0502).
- Conditions in a trust. A purpose that is lawful and not contrary to public policy (§ 736.0105(2)(c)).
- Smaller or later share. An unequal division among children is allowed. A trust can pay principal at stated ages or events.
- Special needs trust. For a child with a disability. See the special needs trust guide.
When to review the plan
- Birth or adoption of a child. The earlier will is not revoked, and the child may take as a pretermitted child (§ 732.507(1)).
- Marriage. A spouse who marries after the will was signed takes an intestate share unless a prenuptial or postnuptial agreement addresses the spouse, the will provides for the spouse, or the will discloses an intention not to provide (§ 732.301).
- Divorce. Will provisions affecting the former spouse are void on dissolution of the marriage, with stated exceptions (§ 732.507(2)).
- Minor child turns 18. The devise restriction on homestead depends on the owner being survived by a spouse or minor child at death (§ 732.4015(1)).
- Change of mind or reconciliation. Sign a codicil or new will with the same formalities (§ 732.502(1), (5)).
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site.
- § 732.101, § 732.103, § 732.2065, § 732.301 and § 732.302, Fla. Stat. (2026). Intestate estate; share of other heirs; amount of the elective share; pretermitted spouse; pretermitted children.
- § 732.401, § 732.4015, § 732.402 and § 732.403, Fla. Stat. (2026). Descent of homestead; devise of homestead; exempt property; family allowance.
- § 732.502, § 732.507, § 732.517, § 732.5165 and § 732.603, Fla. Stat. (2026). Execution of wills; effect of birth or adoption; penalty clause; fraud and undue influence; antilapse.
- § 733.212, § 733.707 and § 733.805, Fla. Stat. (2026). Notice of administration and objections; order of payment; abatement.
- § 736.0105, § 736.0403, § 736.0406, § 736.0502, § 736.0504, § 736.0604, § 736.05053 and § 736.1108, Fla. Stat. (2026). Trust Code.
- § 731.201, § 655.82 and § 222.13, Fla. Stat. (2026). Definitions; pay-on-death accounts; life insurance proceeds.
- Art. X, § 4, Fla. Const.. Homestead; exemptions.
- Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009), accessed October 17, 2026. IRS Publication 590-B (2025), accessed October 17, 2026.
What people ask us about this.
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