Pretermitted spouse and child in Florida
Florida's pretermitted-spouse and pretermitted-child statutes give a default share to spouses and children acquired AFTER a will was signed — even if the will doesn't mention them. Here's how to navigate the rule and avoid accidental disinheritance.
'Pretermitted' is a legal term for a spouse or child the testator acquired after signing their will and didn't address in the document. Florida statutes (732.301 and 732.302) protect them with default inheritance rights — even if the will doesn't mention them.
These rules catch testators who married, remarried, or had children after a will signing and never updated the document. Below: how the rules work, when they apply, and why updating the will after major life events matters.
Pretermitted spouse — FS 732.301
If the decedent married after signing their last valid will and the will doesn't provide for the spouse, the surviving spouse takes a share of the estate as if the decedent died intestate.
- Trigger: marriage occurred after will execution.
- Rule: surviving spouse receives the share they'd take if there were no will (intestate share).
- Override: will explicitly addressing the post-marriage spouse — even saying 'no provision for any future spouse' — defeats the rule.
- Override: prenuptial or postnuptial agreement waiving these rights.
- Override: provision for the spouse outside the will (e.g., substantial transfer to spouse during life with intent to satisfy obligations).
Pretermitted child — FS 732.302
Similar rule for children: if the decedent had a child after signing their last will and the will doesn't provide for that child, the child takes a share equivalent to their intestate share.
- Trigger: child born or adopted after will execution.
- Includes: children born within marriage, born outside marriage, or legally adopted.
- Rule: child receives share they'd take by intestate succession.
- Override: will specifically addresses 'all my children, born or hereafter born' or names future children.
- Override: substantial provision made for the child outside the will (life insurance, gifts, etc.) with evidence of intent to satisfy obligations.
- Override: will explicitly disinherits future children (rare).
Pretermitted vs. elective share — which applies?
Florida has TWO spousal-protection statutes — pretermitted spouse (FS 732.301) AND elective share (FS 732.201–.2155). When both could apply, the spouse may take whichever is more favorable.
- Pretermitted spouse: applies when marriage post-dates the will. Gives intestate share.
- Elective share: applies regardless of marriage date or will provision. Gives 30% of elective estate.
- Choosing between them: spouse calculates both and takes whichever is larger.
- Coordination: pretermitted-spouse claim must be made; elective-share election has its own deadline (6 months from notice of administration).
How to avoid the pretermitted-child rule unintentionally
- Update the will after every birth or adoption. Even if you intend the new child to inherit equally, the explicit mention beats relying on the pretermitted rule.
- Use class-gift language: 'to my children, including any born or adopted hereafter' — covers future children explicitly.
- Address potential future children explicitly: if you don't intend to provide for future children (e.g., post-divorce planning), the will should say so.
- Coordinate with beneficiary designations: 401(k), IRA, life insurance designations should be updated alongside the will.
How to avoid the pretermitted-spouse rule unintentionally
- Update the will after marriage. The most reliable solution.
- Address the new spouse explicitly, even if leaving them less than the intestate share.
- Prenuptial agreement: if drafted properly, waives pretermitted-spouse rights and elective share.
- Provide outside the will: substantial life-insurance or POD designations for the spouse can sometimes satisfy the rule.
- Simple step: a will codicil added at marriage that says 'I have considered the position of my spouse [name] and intentionally provide [X] for them' beats relying on default rules.
What if the spouse or child WAS contemplated?
Florida's pretermitted rules don't apply if the testator clearly considered the post-acquired spouse or child. Common scenarios:
- Will says 'I have considered the position of my future spouse and provide as follows': the spouse takes per will, not pretermitted share.
- Will says 'I have considered the position of any future children and provide as follows': same for kids.
- Strong evidence outside the will (in some cases): substantial trust funds for the new family member, large life insurance benefiting them, well-documented gifts. Courts evaluate context.
- Pre/postnup waivers: explicit waivers of pretermitted-spouse rights are honored if properly executed.
Common mistakes
- Assuming the will controls without considering the rule: a 1995 will that wasn't updated after a 2010 marriage and 2012 child gives the new spouse and child substantial default shares — overriding the will.
- Forgetting the rule applies to adopted children too: adopted children are treated identically to biological for pretermitted-child purposes.
- Relying on a verbal commitment from new spouse: 'we agreed she wouldn't claim anything' isn't enforceable. Use a postnup.
- Not addressing potential post-marriage children when remarrying: if you remarry and don't have new children, the rule never triggers — but if you do have a new child, it does.
- Codicil mistakes: a codicil that adds a provision but doesn't republish the will may not refresh the will's date for pretermitted purposes. Drafting matters.
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