New Probate Laws Open the Door to More Florida Lawsuits

New laws went into effect in Florida this fall that change the way estates are divided in the event that the deceased did not leave a will and offer opportunity for descendants to have the will reinterpreted by the courts.

In most cases, the spouse of the deceased will be left with everything after all of the debts and taxes are paid. This changes the old Florida law that split the estate among the surviving spouse and the surviving children.

In the event that the deceased had children who are not descendants of the surviving spouse, they will now get half of the remaining estate, according to Florida law.

These rules could mean an increased number of lawsuits filed by family members who claim to know the intent of the deceased despite the lack of a will. Since the laws changed, wills that had not been amended since the new laws went into effect will come under closer scrutiny.

The two most significant changes to the law concern the change in the surviving spouse’s inheritance and the court’s ability to change a will if someone presents a case that the will does not represent the intent of the deceased.

If the deceased had no will, then the surviving spouse now will inherit the entire estate if all of the children belong to both the deceased and the surviving spouse. Previously, the surviving spouse would get $60,000 and the other monies would go to the rest of the estate. Portions of the old law continue to apply if there is a surviving child outside of that marriage.

The other significant change in Florida probate law that went into effect this year allows the court to change the will – even if it was unambiguous – if the interested party can prove the intent of the deceased was different from what was in the will.

This could potentially open the doors to many new lawsuits. The law change even says, “In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.”

Probate in Florida includes paying the debt of the deceased as well as taxes and, in some cases, funeral expenses. This occurs before the family or other heirs receive their inheritance. Often this process takes as long as a year (or more) and is handled by Florida circuit courts.

An experienced attorney can help put together a will that serves the exact wishes of a client. But that will needs to be revisited annually to make sure that it is still up to date. In many cases, the attorney can develop an estate plan to minimize probate or avoid it entirely.

Brandon estate planning attorney Reginald Osenton has experience helping clients develop wills, trusts, living wills and power of attorney documentation. He also has experience in helping clients avoid probate, or in helping family members probate estates throughout Florida.

O. Reginald (“Reggie”) Osenton is the Owner and President of Osenton Law Offices, P.A. If you need a Brandon estate planning lawyer, Tampa estate planning lawyer, or Tampa estate planning attorney, call 813.654.5777 or visit

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