Can You Disinherit a Child in Miami, Florida?

The short answer is yes — Florida law allows a parent to disinherit a child. Unlike surviving spouses, who are protected by the elective share and other statutory rights, children in Florida have no guaranteed right to inherit from a parent's estate. However, disinheriting a child is not as simple as leaving them out of the will. There are important legal rules, particularly the pretermitted heir statute, that must be carefully navigated to ensure that the disinheritance is effective.

Children Have No Elective Share in Florida

One of the most important things to understand about disinheriting a child in Florida is that the elective share does not apply to children. The elective share under F.S. § 732.201 is a right that belongs exclusively to surviving spouses. It allows a surviving spouse to claim 30% of the elective estate regardless of what the will provides. Children have no equivalent right.

This means that a parent can leave their entire estate to one child and nothing to another, leave everything to charity, or distribute their assets in any manner they choose — and the disinherited child has no automatic legal claim to a share of the estate. The freedom to distribute one's estate is a fundamental principle of Florida probate law.

The Pretermitted Heir Rule: F.S. § 732.302

While a parent can intentionally disinherit a child, Florida's pretermitted heir statute (F.S. § 732.302) creates an important exception that must be addressed. A pretermitted child is a child who was born or adopted after the parent executed their will and who is not otherwise provided for in the will or by other means.

Under F.S. § 732.302, a pretermitted child is entitled to receive a share of the estate equal to what they would have received if the decedent had died intestate, unless:

• The testator provided for the child by transfer outside the will (such as a trust, life insurance, or other non-probate transfer) and the intent that the transfer be in lieu of a testamentary provision is reasonably apparent
• 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

The pretermitted heir rule exists to protect children the testator may have simply forgotten to include in an older will — not to override an intentional decision to disinherit. But if a parent's will was executed before a child was born and the will does not mention the child or demonstrate an intent to exclude them, the after-born child may claim a share.

How to Effectively Disinherit a Child in Florida

To ensure that a disinheritance is legally effective and not subject to challenge, the following best practices should be followed:

1. Explicitly State the Disinheritance in the Will

The most effective way to disinherit a child is to specifically name the child in the will and state that they are intentionally being excluded. A simple statement such as “I intentionally make no provision for my child, [Name], and it is my express wish that [Name] receive nothing from my estate” makes the testator's intent clear and eliminates any argument that the child was accidentally omitted.

Merely leaving a child out of the will without mentioning them is risky. If the child was born after the will was executed, they may qualify as a pretermitted heir and claim an intestate share. Even for children who existed when the will was signed, explicitly naming them and stating the exclusion removes ambiguity.

2. Update the Will After the Birth or Adoption of Each Child

To avoid pretermitted heir issues, parents should update their will or trust after each child is born or adopted. Even if the parent intends to include all children equally, updating the estate plan ensures that the pretermitted heir statute does not apply and that the parent's specific wishes are documented.

3. Include a General Disinheritance Clause

In addition to naming specific children, a will can include a general clause stating that any person not specifically named as a beneficiary is intentionally excluded. While this type of catch-all language is helpful, it should not be relied upon as the sole method of disinheritance. Naming the child specifically is always preferable.

4. Document the Reasons

While not legally required, documenting the reasons for the disinheritance in a separate memorandum or letter of intent (not in the will itself, to avoid airing private matters in the public probate record) can help defend against a later challenge. If the disinherited child alleges undue influence or lack of testamentary capacity, evidence that the parent had clear, rational reasons for the decision will strengthen the estate's defense.

Using a Trust to Disinherit a Child

A revocable living trust can be an effective alternative or supplement to a will when disinheriting a child. Trusts offer several advantages:

• Privacy. Unlike a will, which becomes a public record when admitted to probate, a trust remains private. This means the disinherited child and the public may not have access to the details of the distribution.
• Avoidance of probate. Assets held in a trust do not pass through probate, which may reduce the opportunities for a disgruntled child to challenge the estate plan in court.
• Flexibility. A revocable trust can be amended at any time during the grantor's lifetime, making it easy to update the plan as family circumstances change.

However, trusts are not immune from challenge. Under the Florida Trust Code (F.S. Chapter 736), a trust can be contested on the same grounds as a will, including lack of capacity, undue influence, and fraud. The key advantage is procedural — trust contests follow different timelines and procedures than will contests, and the trust's privacy may discourage some challenges.

Can a Disinherited Child Contest the Will?

Yes. A disinherited child who would inherit under Florida's intestacy statutes if the will were declared invalid has standing to contest the will. The child can challenge the will on grounds such as:

• Lack of testamentary capacity
• Undue influence by another beneficiary
• Fraud or duress
• Improper execution of the will

If the child succeeds in invalidating the will, the estate would be distributed under Florida's intestacy laws, which would entitle the child to a share. This is why proper drafting and documentation are so important when disinheriting a child.

It is worth noting that Florida does not enforce no-contest clauses (in terrorem clauses). Under F.S. § 736.1108, a provision that penalizes a beneficiary for contesting a trust is unenforceable. Similarly, no-contest clauses in wills are not enforceable in Florida. This means you cannot deter a disinherited child from filing a contest by threatening to reduce their share — because they have nothing to lose.

Disinheriting Minor Children

Disinheriting a minor child raises additional considerations. While Florida law does not prevent a parent from disinheriting a minor child through their will, the surviving parent or guardian retains the obligation to support the child during their minority. A child's right to support from a living parent is separate from inheritance rights.

Additionally, if the decedent's home is the child's primary residence, Florida's homestead protections may prevent the property from being devised away from a surviving spouse and minor children, regardless of what the will says.

Common Mistakes When Disinheriting a Child

Parents who attempt to disinherit a child without proper legal guidance often make mistakes that undermine their intent:

• Leaving the child a nominal amount ($1). While this approach was common in the past, it is unnecessary in Florida and can actually create problems. It gives the child standing as a named beneficiary and may invite a challenge. Simply naming the child and stating the exclusion is cleaner and more effective.
• Failing to update the will after new children are born. This is the most common way the pretermitted heir statute comes into play and can result in unintended distributions.
• Using vague language. Phrases like “I leave nothing to any child not named herein” may not be specific enough to defeat a challenge, especially if the child claims the omission was unintentional.
• Not addressing the reason for the disinheritance. While you do not need to include reasons in the will, having no documentation at all of the parent's reasoning can make it easier for the disinherited child to claim the decision was the product of undue influence or incapacity.

Contact a Florida Estate Planning Attorney

Disinheriting a child is a significant decision that requires careful legal planning to ensure your wishes are carried out. The attorneys at Law Offices of Albert Goodwin, PA can help you draft or update your will or trust to effectively exclude a child while minimizing the risk of a successful challenge. We can also assist if you are a child who has been disinherited and believes the exclusion was the result of undue influence, fraud, or incapacity.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.