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So a will is almost meaningless if my father was married as all items drop down my stepmother.

Lake Worth, FL |

Even if you can prove she had undue influence and he had capacity issues, it sounds like she gets away Scott free. She is untouchable. Can I request items I gave my father as gifts and if she does not produce then I can put her in collection on her credit. Basically I can prove this woman is the devil (LOL) anything I can do?

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Attorney answers 5

Best Answer

There are a number of criteria in determining a spouse's share of an estate. Your fathers most recent valid will is still important and if you are named as a beneficiary you may still be entitled to a distribution from his estate. I would be happy to give you a free consultation on the matter.

Ryan M. Layton, Esq.


No, the will isn't worthless, it is just subject to a spouse's right to an elective share and, because the father had issue, the alternatives that opens for the wife regarding homestead property. (Life tenancy with children as remaindermen versus tenants in common with the children.)

If you can prove undue influence and capacity, you can stop the will from being admitted to probate and either use an old will or intestacy, but neither will overcome the elective share.

What will overcome the elective share is Florida's slayer statute. It does... what it sounds like it does.

I am licensed in New York only. My answers are generally based on New York law or common law, except where otherwise indicated, and other states may make exceptions or have peculiarities resulting in different answers from an attorney licensed in the other state.


I disagree with you. If you can prove undue influence, coercion, of lack of his capacity to make changes that you find unfavorable, then the Court will strike the Will. However, if he left a surviving spouse, then she can demand an elective share of 30% of the probate estate with the restrictions and definitions in Fla Stat Ch 732 Part II

Do you know the consequences of your legal situation on your Financial & Estate Plan? Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.


I don't know how you are reaching your conclusions as you have not explained factually what happened. A will generally be enforced according to its terms unless it was procured by undue influence, was not properly executed, or if the testator lacked the capacity to execute the will. However, a will is meaningless as to the estate of the first spouse to die if the Husband and Wife owned all thier property as Husband and Wife (tenancy by the entireties) or as joint tenants with rights of survivorship. This is because there is no estate for the first to die as all property goes by virtue of the way the property is titled. In other words, there is no property in your Dad's name.

In Florida, a spouse is unable to completely disinherit a surviving spouse absent a prenuptial or antenuptial agreement. The spouse is generally entitled to an life estate interest in the decedent's homestead, an elective share, a family allowance of $18,000.00, and property identified as "exempt property".

I suspect you are in the situation where everything was in joint names with step mom. Unless you can prove fraud, undue influence, or some other wrongdoing when they took joint title, you are out of luck. Even if you do have facts to support the fraud or undue influence, it is very difficult to attack a surviving spouses interest in property and you really need some compelling facts.

If you want real advice, I suggest you contact a probate lawyer.

Christopher Q. Wintter
Wintter & Associates, P.A.
2239 Hollywood Boulevard, Hollywood, FL 33020
Phone: 954-920-7014 Fax: 954-920-7080

Board Certified Trusts and Estates Lawyer


I agreed with some of my colleges. First, the will is going to be enforced unless it was produced by undue influence. If you can prove undue influence (huge burden), you may stop the will from being admitted to probate (remember you have the burden of proof). However, you will not overcome the elective share absent a prenuptial or antenuptial agreement.

Camilo Espinosa
LOIGICA, PA - Local Counsel - Global Solutions
Tel. 305.390.0450
M. 305.726.1537