Florida’s Probate Code protects family members who appear to have been unintentionally left out of a will because of events that happened after the document was signed. These protections live in the pretermitted spouse and pretermitted child statutes and they can reshape an otherwise tidy estate plan.
A pretermitted spouse is a person who marries the testator after the will is executed and survives the testator. Unless an exception applies, the surviving spouse receives the share he or she would have taken if the decedent had died without a will. Florida law recognizes three exceptions. The spouse does not take a pretermitted share if there is a valid marital agreement waiving it, if the will provides for the spouse, or if the will shows an intention not to provide for the spouse.
A pretermitted child is a child who is born or adopted after the will is executed and is omitted from the will. Unless an exception applies, that child receives the same value he or she would have received under intestacy (mean if there was no will). The two statutory exceptions are intentional omission shown on the face of the will, or a plan where the testator already had one or more children when the will was signed and left substantially all of the estate to the other parent of the pretermitted child who survives and takes under the will.
Litigation often turns on the exceptions. For spouses, the questions are whether the will truly provides for the spouse, whether the will clearly shows an intent not to provide, or whether a waiver in a prenuptial or post-nuptial agreement is valid and enforceable. For children, courts examine whether the omission appears intentional on the face of the will and whether the substantially all to the other parent exception applies. Florida decisions underscore that the pretermitted spouse statute is triggered only by a marriage that occurs after the will is executed and that the statute’s text controls. Similar textual analysis governs the child statute and its narrow exceptions.
The planning takeaway is simple. Update your estate plan when life changes. Marriage and the birth or adoption of a child call for a fresh review so the will reflects current intent. For fiduciaries, early identification of potential pretermitted claims is essential because they affect strategy, notice, reserves, and settlement posture. For disappointed beneficiaries, a careful reading of the statutes and the will language is the starting point. These rules exist to prevent inadvertent disinheritance, but the exceptions are precise and the outcome turns on the facts and the text.
If you think a pretermitted issue may be in play, do not guess. Sit down with a Florida probate lawyer who can review the will, key dates, and family circumstances, explain your options, and protect your rights before deadlines or drafting gaps turn into costly litigation.