Pretermitted spouse and child in Florida: the share owed when a will predates a marriage or birth

A pretermitted spouse or child is one the testator acquired after signing the will and did not provide for. Florida does not revoke the will. Marriage, birth or adoption after the will is signed does not revoke it, but the pretermitted spouse or child inherits as §§ 732.301 and 732.302 provide, regardless of the will (§ 732.507(1), Fla. Stat. (2026)).

• Spouse (§ 732.301): when a person marries after making a will and the spouse survives the testator, the spouse receives a share equal in value to what the spouse would have received if the testator had died intestate, unless (1) provision was 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.
• Child (§ 732.302): when a testator omits to provide by will for a child 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 receives a share equal in value to the child's intestate share, 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 of the estate to the other parent of the pretermitted child, who survived and is entitled to take under the will.
• Who pays the share: it comes from estate property in this order: property passing by intestacy, the residuary devise, property not specifically or demonstratively devised, then specific and demonstrative devises (§ 733.805(1)).
• Deadline: the text of §§ 732.301 and 732.302 states no filing deadline. The elective share, a separate right, has one (Table 4).

Pretermitted spouse: the three exceptions

The statute applies to a marriage after the will and to a spouse who survives the testator. It states no minimum length of marriage. The three exceptions in Table 1 are the only ones it lists.

Ganier holds that a spouse has not been "provided for" under § 732.301(2) unless the testator both provided for a person named in the will and made the provision in contemplation of marriage to that person (Ganier). The 1977 will in that case left two of the testator's bank accounts to a man she married about 18 months later. The court held that when a pre-marriage will names a person who later becomes the spouse, the surviving spouse has the burden of proving the gift was not made in contemplation of marriage, and that evidence of the circumstances when the will was signed is admissible. The court reinstated the trial court's judgment that he was a pretermitted spouse.

What a pretermitted spouse receives

The share is the one the spouse would take if the testator had died without a will, under § 732.102. The share applies to the estate described in § 732.301, and the abatement order in § 733.805 decides which devisees give up property to fund it.

Example, computed from the statutes: a testator signs a will leaving everything to a child from a first marriage, remarries, and dies survived by the second spouse and that child. The child is not the spouse's descendant, so § 732.102(3) gives the spouse one-half of the intestate estate. The will controls the other half.

Pretermitted child: the elements and the two exceptions

Every element in the list must be present. A child born before the will was signed is outside the statute, because the statute covers only a child "born or adopted after making the will" (§ 732.302). For a child who was alive when the will was signed and was left out, see the guide on disinheriting a child.

• Born or adopted after the will was made. An adopted person is a descendant of the adopting parent for intestate succession (§ 732.108(1)). A child born out of wedlock is a descendant of the mother, and of the father if the parents took part in a marriage ceremony, paternity was adjudicated, or the father acknowledged paternity in writing (§ 732.108(2)).
• Omitted from the will. The will makes no provision for the child.
• No advancement. The child must not have received a part of the testator's property equivalent to a child's part by way of advancement (§ 732.302). Section 732.302 does not say how an advancement is shown. The writing rule in § 733.806 (declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir) is written for a person who dies intestate.
• No exception applies. The will must not show the omission was intentional, and the testator must not have left substantially all of the estate to the child's other parent, who survived and takes under the will, where the testator already had a child when the will was signed.

Computed from the statutes: the child's share is measured by the child's intestate share. Descendants take only "the part of the intestate estate not passing to the surviving spouse" (§ 732.103). If the testator's spouse would take the entire intestate estate under § 732.102(1) or (2), that part is none.

Pretermitted share and elective share

Florida has two spousal statutes with different triggers. Table 4 compares them.

Divorce, remarriage and the non-probate assets

• Divorce. A will provision that affects the testator's spouse is void on dissolution of the marriage, and the will is construed as if the spouse died at the time of the dissolution. A will signed after the dissolution, a contrary intention stated in the will, and a judgment that expressly provides otherwise are exceptions (§ 732.507(2)).
• Remarriage after a will. A second spouse is pretermitted when the second marriage came after the will, even if the will once provided for a first spouse (§ 732.301).
• Beneficiary designations. The statutes speak of the will and the estate. They say nothing about retirement accounts, life insurance or accounts payable on death, which pass by their own designation. A designation naming a former spouse is void on dissolution for the assets listed in § 732.703(3), subject to the exceptions in subsection (4).
• Revocable trusts. Neither statute mentions a revocable trust. The share is raised from the estate's property in the order in § 733.805(1).

Ways a will avoids the default rules

• Sign a new will after a marriage, birth or adoption. Sections 732.301 and 732.302 apply to a marriage, birth or adoption that comes after the will is made. A new will signed after the event is made after it.
• State the intention in the will. For a spouse, the will must disclose an intention not to make provision (§ 732.301(3)). For a child, it must appear from the will that the omission was intentional (§ 732.302(1)).
• Provide for the person by name, in contemplation of the marriage. A gift to a named future spouse defeats the claim only if made in contemplation of that marriage (Ganier).
• Use a written, witnessed agreement. A prenuptial or postnuptial waiver signed before two subscribing witnesses removes the spousal claim (§ 732.702).
• Republish by codicil after the birth. A codicil that expressly republishes the will after a child is born defeats that child's claim (Azcunce).