Pretermitted Spouses and Children: When Life Changes After the Will
Fla. Stat. §§ 732.301, 732.302, 732.507
In Florida, a spouse the testator married after signing a will, or a child born or adopted after the will, who is left out of that will generally receives the share they would have inherited if there were no will (Fla. Stat. §§ 732.301, 732.302). Exceptions apply when the will or a marital agreement shows the omission was deliberate.
What it is
"Pretermitted" means passed over. In Florida, a will is not revoked when the person who signed it later marries, has a child, or adopts (Fla. Stat. § 732.507(1)). Instead, Florida gives the new spouse or child a share through two statutes: § 732.301 for a pretermitted spouse and § 732.302 for pretermitted children.
Each statute gives the omitted person a share of the estate equal in value to what he or she would have received if the testator had died without a will. That measure comes from Florida's intestacy rules: the spouse's share under § 732.102 and the share of other heirs, starting with descendants, under § 732.103. See dying without a will in Florida for how those shares work.
The share is raised from the estate in the order set by § 733.805(1): first property passing by intestacy, then property left to the residuary beneficiaries, then other property not specifically or demonstratively devised, and last property specifically or demonstratively devised (§§ 732.301, 732.302). In practice, the beneficiaries named in the will bear the cost, beginning with the residuary beneficiaries.
Divorce works differently. A will's provisions that affect a former spouse become void when the marriage is dissolved, and the will is read as if the former spouse died at the time of the divorce (§ 732.507(2)). That rule removes the former spouse; it does not add a new one.
When the Pretermitted Share Applies, and When It Does Not
The two statutes have different triggers and different exceptions:
- Pretermitted spouse: the testator married after making the will, and the spouse survived the testator (§ 732.301).
- No spouse share if provision was made for, or waived by, the spouse in a prenuptial or postnuptial agreement (§ 732.301(1)); if the spouse is provided for in the will (§ 732.301(2)); or if the will discloses an intention not to make provision for the spouse (§ 732.301(3)).
- Pretermitted child: the child was born or adopted after the will was made, the will does not provide for the child, and the child has not received a part of the testator's property equivalent to a child's part by way of advancement (§ 732.302).
- No child share if it appears from the will that the omission was intentional (§ 732.302(1)), or if the testator had one or more children when the will was signed, devised substantially all the estate to the other parent of the pretermitted child, and that parent survived the testator and is entitled to take under the will (§ 732.302(2)).
- A spouse may also waive a pretermitted share, before or after marriage, in a written agreement signed in the presence of two subscribing witnesses (§ 732.702(1)).
Section 732.302 covers the testator's own children, "born or adopted." A stepchild the testator never adopted is not the testator's child under that statute.
Pretermitted Spouse vs. Pretermitted Child
| Aspect | Pretermitted spouse | Pretermitted child |
|---|---|---|
| Statute | Fla. Stat. § 732.301 | Fla. Stat. § 732.302 |
| Trigger | Marriage after the will was made | Birth or adoption after the will was made |
| Amount | What the spouse would take in intestacy (§ 732.102) | What the child would take in intestacy (§§ 732.102, 732.103) |
| Main exceptions | Marital agreement; provided for in the will; will shows intent to omit | Will shows omission was intentional; substantially all left to the child's other parent; prior advancement |
| Source of the share | Estate assets in the order of § 733.805 | Estate assets in the order of § 733.805 |
How a Pretermitted Claim Is Evaluated in Probate
A pretermitted share is addressed within the probate administration of the will. The analysis starts with dates — when the will was signed compared with the dates of the marriage, birth, or adoption — and then turns to the will's wording.
- Read the will for language addressing a future spouse or future children. Language showing the omission was intentional defeats the claim (§§ 732.301(3), 732.302(1)).
- Look for a prenuptial or postnuptial agreement that provides for or waives the spouse's rights (§§ 732.301(1), 732.702).
- For a child, check for lifetime advancements equivalent to a child's part (§ 732.302).
- Compute the intestate share as if there were no will, using §§ 732.102 and 732.103.
- Raise the share from estate assets in the § 733.805 order, beginning with intestate property and the residue.
- Handle the homestead under its own rules. If the owner is survived by a spouse or a minor child, the homestead generally may not be devised, except to the spouse when there is no minor child (§ 732.4015(1)); a homestead not devised as the law allows descends under § 732.401. See homestead devise restrictions.
Pretermitted Spouse Share vs. Elective Share
A spouse who married the testator after the will was signed may have both a pretermitted claim and a right to the Florida elective share. They are measured differently. The pretermitted share equals the spouse's intestate share of the estate (§ 732.301). The elective share is 30% of the broader elective estate, which also reaches non-probate assets such as revocable trusts and joint accounts (§§ 732.2035, 732.2065), and property passing to the spouse is counted first toward it (§ 732.2075(1)). The elective share also has its own filing deadline (§ 732.2135). Which right matters more depends on how the decedent's assets were titled.
Preventing an Unintended Result
The statutes themselves point to the fix. A will can provide for a future spouse or children, or state that leaving them out is intentional (§§ 732.301(2)–(3), 732.302(1)). A spouse's rights can be addressed in a prenuptial or postnuptial agreement (§§ 732.301(1), 732.702). And a will can simply be updated after a marriage, birth, or adoption. See our page on Florida wills.
Getting Advice on a Pretermitted Claim
Whether a spouse or child is pretermitted turns on the exact words of the will, the dates, any marital agreement, and any lifetime advancements. The share then comes out of other beneficiaries' gifts in the statutory order (§ 733.805). A personal representative needs to resolve the question before distributing. The omitted spouse or child, and the named beneficiaries, each need to know how the share is computed and where it comes from. We review the will, the agreements, and the family facts and explain how §§ 732.301 and 732.302 apply.
Frequently Asked Questions
What happens if you get married after making a will in Florida?
Marriage does not revoke the will (Fla. Stat. § 732.507(1)). But if the new spouse survives and is not provided for, the spouse receives a share equal to what he or she would have taken if there were no will (§ 732.301). That rule does not apply if a prenuptial or postnuptial agreement provided for or waived the spouse's rights, if the will provides for the spouse, or if the will shows an intention not to provide for the spouse.
Does a child born after a will inherit in Florida?
Often, yes. A child born or adopted after the will, who is not provided for in it and has not received an equivalent advancement, receives the share he or she would have taken if there were no will (Fla. Stat. § 732.302). The exceptions: the will shows the omission was intentional, or the testator already had children when signing, left substantially all the estate to the omitted child's other parent, and that parent survives and takes under the will.
Does the pretermitted child rule apply to adopted children?
Yes. Section 732.302 expressly covers children "born or adopted" after the will was made. For intestate succession, which supplies the measure of the pretermitted share, an adopted person is a descendant of the adopting parent (Fla. Stat. § 732.108(1)). A stepchild who was never adopted by the testator is not covered by § 732.302.
Can a will avoid a pretermitted spouse or child claim?
Yes, through its wording. A spouse has no pretermitted share if the will provides for the spouse or discloses an intention not to (Fla. Stat. § 732.301(2)–(3)). A later-born or adopted child has no share if it appears from the will that the omission was intentional (§ 732.302(1)). A prenuptial or postnuptial agreement can also provide for or waive a spouse's rights (§ 732.301(1)). Clear language reduces the room for dispute.
Who pays the pretermitted spouse's or child's share?
The beneficiaries under the will, in a set order. Under Fla. Stat. § 733.805(1), the share is raised first from property passing by intestacy, then from the residuary gifts, then from other gifts not specifically or demonstratively devised, and last from specific gifts. Sections 732.301 and 732.302 both direct that the share be obtained this way, so the residuary beneficiaries usually feel it first.
Does a divorce change my will in Florida?
Yes, as to the former spouse. Provisions of a will that affect the spouse are void once the marriage is dissolved, and the will is read as if the former spouse died at the time of the divorce. Exceptions apply if the will was signed after the divorce, states a contrary intention, or the divorce judgment provides otherwise (Fla. Stat. § 732.507(2)). A later remarriage can then raise the pretermitted-spouse rule.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Questions about a will signed before a marriage or a child?
Call (407) 843-0430 or schedule a consultation with an Orlando probate attorney to review the will, any marital agreement, and how Florida's pretermitted heir statutes apply.
Or text PROBATE to (407) 906-9507 for a faster response.
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