What the rule says
Florida law protects a spouse who marries the testator after the testator's will was executed. Under Florida Statutes § 732.301, when a Florida resident executes a will and later marries, and the will does not provide for the new spouse, that spouse is entitled to receive a share of the estate equal to what they would have received under Florida's intestacy statutes.
The pretermitted spouse takes:
- A share computed as if the decedent had died intestate, applying Florida Statutes § 732.102 to the entire estate (excluding any homestead and exempt property, which are governed by separate provisions) - The amount calculated against the value of the probate estate
Under § 732.102, the spouse's intestate share is the entire estate when descendants are mutual and the spouse has no other descendants, or one-half when descendants are from prior relationships.
The rule recognizes that a will written before a marriage rarely anticipates the new spouse and presumes the testator would have provided for them if the will had been updated.
The two exceptions
The pretermitted-spouse share does not apply if either of the following is true:
1. The will discloses that the omission was intentional. Express language in the will indicating that the testator did not intend to provide for any future spouse, or for this specific person, satisfies this exception. 2. The spouse waived inheritance rights in a valid written agreement. A premarital or postmarital agreement that includes a waiver of pretermitted-spouse rights is enforceable. The waiver requirements are governed by Florida's Uniform Premarital Agreement Act (Fla. Stat. ch. 61) for premarital agreements and applicable case law for postmarital waivers.
If neither exception applies, the spouse takes the intestate share regardless of what the will provides for other beneficiaries.
What this means in practice
The rule applies in a common scenario: a Florida resident executed a will years before a current marriage, never updated it, and the will does not mention the spouse. Florida treats the omission as an oversight and corrects it by giving the spouse an intestate share.
Practical consequences:
- An executor administering an estate must compare the will's date against the marriage date and analyze whether either exception applies before distributing. - The pretermitted spouse's share comes from the residue of the estate proportionally, which can shift the actual distribution that beneficiaries under the will receive. - Florida homestead and exempt property protections operate independently and may further increase what the surviving spouse receives.
The rule does not protect a current spouse who is named in the will but receives less than the intestate share would have provided. The pretermitted-spouse statute addresses only spouses who do not appear in the will at all, or who appear only by general reference (such as "any future spouse") without a substantive provision.
What you can do about it
The cleanest fix after marriage is to execute a new will or codicil. A new will that explicitly addresses the spouse — whether by including or excluding them — eliminates the pretermitted-spouse question entirely.
If the intent is to exclude a future spouse from inheritance, the most reliable mechanism is a premarital agreement that includes a written waiver of pretermitted-spouse rights, signed and notarized before the marriage.
Practical points:
- Updating the will should not be deferred. A will not updated after marriage exposes the estate to the pretermitted-spouse share, which may not match the testator's intentions for distribution. - Florida elective share is a separate protection. Independent of the pretermitted-spouse rule, a surviving spouse in Florida has an elective-share right under Fla. Stat. ch. 732, Part II, that allows them to take 30% of the elective estate regardless of the will. Pretermitted-spouse rules and elective-share rules are different statutory protections. - Beneficiary designations on non-probate assets pass independently. Life insurance, retirement accounts, and payable-on-death accounts pass to named beneficiaries regardless of pretermitted-spouse status.
Who this affects most
The pretermitted-spouse rule is most consequential for:
- Floridians who married without revisiting their estate plan - Estates where the will is significantly older than the marriage - Families with adult children from prior relationships who may dispute the pretermitted-spouse share
The rule is a default protection. Documenting actual intent — whether to provide for the new spouse or not — replaces the default with a clear choice.