What Does Pretermitted Mean in Florida?
It means left out by timing, not left out on purpose. Florida uses the word for a spouse you married after signing your will, and for children born or adopted after you signed it.
That is the whole idea. A will cannot provide for someone who did not yet exist in your life when you wrote it, so Florida assumes the omission was an accident of chronology rather than a decision, and gives that person a share anyway.
Everything else follows from that, including the part people find hardest to hear. If the person was already there when you signed, these statutes have nothing to say about them.
Practice pointer. The first thing I ask on one of these calls is the date on the will and the date of the marriage or the birth, in that order. If the will is the later document, the conversation is usually over before we reach the merits.
What Is the Pretermitted Spouse Rule in Florida?
Fla. Stat. §732.301 provides that when a person marries after making a will and the spouse survives the testator, the surviving spouse receives a share of the estate equal in value to what they would have received if the testator had died intestate, unless one of three things applies.
- Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement.
- The spouse is provided for in the will.
- The will discloses an intention not to make provision for the spouse.
Read the third one carefully, because it is not satisfied by silence. A will that simply predates the marriage and never mentions a spouse does not disclose an intention. It discloses that the document is out of date.
The first exception is why this lane belongs in the marital agreement conversation. A Florida prenup or postnup can address this right alongside the elective share, homestead, exempt property and the family allowance. See how a Florida prenup and postnup compare and the Florida elective share, which is a separate and larger claim the same spouse may also have.
What Is the Pretermitted Child Statute in Florida?
Fla. Stat. §732.302 applies when a testator omits to provide by will for any of their children born or adopted after making the will, and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement. That child receives a share equal in value to what they would have received on intestacy.
There are two exceptions, and either one defeats the claim.
- The will shows the omission was intentional. If it appears from the will that the testator meant to omit the child, the statute does not apply.
- The estate went to the child’s other parent. Where the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child, and that other parent survived and is entitled to take under the will, there is no pretermitted share. The law assumes the child is provided for through the surviving parent.
That second exception surprises families, and it is the one most often overlooked when a blended family reads the statute for themselves.
Practice pointer. When a client has a child after signing a will, I do not rely on the exceptions to save the plan. I update the will, because both exceptions turn on how a court reads a document written before the child existed, and that is a worse position than simply having a current will.
A will written before a marriage or a birth is out of date
We draft wills with the recitals that survive a later marriage or a new child, so the plan you signed is the plan that operates. Flat fee, quoted up front.
Can a Child Left Out of a Will Contest It?
Not on this ground, and this is where I have to disappoint people most often.
Fla. Stat. §732.302 reaches children born or adopted after the will was made. A child who was alive when the will was signed and simply received nothing is not pretermitted. Florida generally permits a testator to leave an adult child out of a will, and doing so is not by itself a legal wrong.
The same answer applies to the sibling question people search for. If your brother was alive when your parent signed the will and the will gives him nothing, the pretermitted statute does not help him, however unfair the result feels.
A child in that position needs a different theory entirely. Lack of testamentary capacity, undue influence, fraud or improper execution are the grounds that void a will, and they are harder, slower and more expensive than the pretermitted statutes, which operate almost automatically when they apply. Those grounds are set out on contesting a Florida will, and the deadline to raise them is short. See the notice of administration and the three-month clock.
Where Do I File This, and How Long Do I Have?
Clients are often confused about whether a pretermitted claim is the same thing as contesting a will, and ask me, "Do I have to sue?" They are different. A pretermitted share is a statutory entitlement asserted in the probate rather than a challenge to the validity of the will, so the will can be perfectly valid and the share still applies. I still want to see the notice of administration on day one, because the deadlines running against you in that probate do not wait while you work out which claim you have.
How Much Does a Pretermitted Person Receive?
An intestate share, which is a formula rather than a number. Both statutes measure the share by what the person would have received had the testator died without a will, so the answer depends on who else survived and on Florida’s rules of intestate succession. A surviving spouse with no descendants is in a very different position from a spouse who survives alongside children from an earlier relationship.
Both sections then send you to a second statute for the mechanics. The share assigned to a pretermitted spouse or child shall be obtained in accordance with Fla. Stat. §733.805, which governs the order in which the estate’s property is applied to satisfy it.
That matters more than it sounds. A specific gift and a share of the residue are not treated identically, so the burden of funding a pretermitted share can fall unevenly across the people named in the will. A plan can survive the arithmetic and still be unrecognisable afterward.
How to Make Sure This Never Applies to You
- Update the will after a marriage or a birth. The simplest and most reliable answer, and the one people postpone.
- Use recitals that survive later events. A will can state its intention about a future spouse or a future child, which is what the exceptions in both statutes are looking for. Our Secure Will Estate Plan at $1,200 includes recitals drafted to hold up if you later marry or have another child.
- Put it in the marital agreement. Fla. Stat. §732.301(1) makes a prenuptial or postnuptial agreement a complete answer on the spouse side, and that agreement can address the elective share and homestead in the same document.
Frequently Asked Questions
What Is a Pretermitted Child?
In Florida, a pretermitted child is a child born or adopted after the testator made the will, who was not provided for in that will and has not received property equivalent to a child’s part by way of advancement. Fla. Stat. §732.302 gives that child a share of the estate equal in value to what they would have received if the testator had died intestate. The word describes timing rather than intent. It is not a term for a child who was deliberately cut out.
What Is the Pretermitted Spouse Rule in Florida?
Fla. Stat. §732.301 provides that when a person marries after making a will and the spouse survives the testator, the surviving spouse receives a share of the estate equal in value to what they would have received if the testator had died intestate. The rule exists because a will written before a marriage cannot have contemplated that spouse. Three exceptions defeat the claim, being a prenuptial or postnuptial agreement, provision for the spouse in the will itself, or the will disclosing an intention not to provide for the spouse.
Can a Child Left Out of a Will Contest It in Florida?
Not on the pretermitted ground, if the child was alive when the will was signed. Fla. Stat. §732.302 reaches only children born or adopted after the will was made. A child who existed at the time the will was executed and simply received nothing is not pretermitted, and Florida generally permits a testator to leave an adult child out. That child would need a different theory altogether, such as lack of capacity, undue influence or improper execution, which is a different and harder case.
Does a Prenup Stop a Pretermitted Spouse Claim?
Yes, and it is the first exception the statute names. Fla. Stat. §732.301(1) removes the claim where provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement. That is one more right a Florida marital agreement can address, alongside the elective share, homestead, exempt property and the family allowance. It is also a reason to review an agreement signed years earlier, because it should name the rights it is waiving rather than rely on general language.
What if the Will Says Nothing About My Later Marriage?
Then the pretermitted spouse rule is likely to apply, which is the point of it. Silence is not the same as an intention not to provide. The third exception in Fla. Stat. §732.301(3) requires the will to disclose an intention not to make provision for the spouse, so a will that simply predates the marriage and never mentions a spouse at all will generally not satisfy it. Updating the will after a marriage is the straightforward fix.
Are There Exceptions for a Pretermitted Child?
Two, in Fla. Stat. §732.302. The first is where it appears from the will that the omission was intentional. The second is more specific and catches families by surprise, applying where the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child, and that other parent survived the testator and is entitled to take under the will. In that situation the law assumes the child is provided for through the surviving parent.
How Much Does a Pretermitted Spouse or Child Get?
An intestate share, which is a formula rather than a set figure. Both statutes measure the share by what the person would have received if the testator had died without a will, so the answer depends on who else survived and on Florida’s intestate succession rules. Both sections then direct that the share be obtained in accordance with Fla. Stat. §733.805, which governs the order in which the estate’s assets are used to satisfy it.
Does a Pretermitted Share Come Out of Everyone Equally?
Not necessarily. Fla. Stat. §733.805 sets the order in which property is applied to satisfy a share like this, and that order can affect some beneficiaries far more than others. A specific gift and a share of the residue are not treated the same way. This is one of the practical reasons a pretermitted claim disrupts a plan more than the headline share suggests, and it is worth understanding before assuming the impact is spread evenly.
Common Situations
The will that predated the wedding. A man in Port Orange signed a will in 2009 leaving everything to his two children, married in 2016, and died without updating it. His widow was a pretermitted spouse and took an intestate share off the top. The counterfactual is a single appointment, because either a new will or a prenup naming the right would have settled it.
The daughter born afterward. A Tampa couple signed wills before their third child arrived. The two older children were named and the youngest was not. She was pretermitted, and the second exception did not save the plan because the estate had not gone substantially to her other parent. The family spent a year on arithmetic nobody had intended.
The son who was simply left out. A man called about his father’s will, which gave everything to a sibling. He had been alive and an adult when it was signed. The pretermitted statute did nothing for him, and I told him so in the first ten minutes rather than let him pay for a month of hope. Whether he had a capacity or undue influence case was a separate question with a much shorter deadline.
Sources of Law
- Fla. Stat. §732.301 (pretermitted spouse; marriage after making the will; intestate share; exceptions for a prenuptial or postnuptial agreement, provision in the will, or a disclosed intention not to provide; share obtained per §733.805). History, s. 1, ch. 74-106; s. 16, ch. 75-220; s. 9, ch. 77-87. Created from former s. 731.10. Retrieved 2026-09-14.
- Fla. Stat. §732.302 (pretermitted children; children born or adopted after making the will; advancement; intestate share; exceptions where the omission appears intentional, or where the testator had children at execution and devised substantially all to the other parent who survived and takes; share obtained per §733.805). History, s. 1, ch. 74-106 through s. 36, ch. 2001-226. Created from former s. 731.11. Retrieved 2026-09-14.
- Fla. Stat. §733.805 (order in which estate property is applied to satisfy a share), and Fla. Stat. ch. 732 part I (intestate succession), which supplies the measure of the share.
- Fla. Stat. §732.702 (waiver of spousal rights by written contract before or after marriage), which is the mechanism behind the first exception in §732.301.
- ⚠ The size of an intestate share depends entirely on who survived. This page describes the statutes; it does not calculate your share. Confirm it against your own family before relying on any figure.
- Advertised fees are honored for 90 days from the posted date. Litigation is quoted case by case. Fees are not a prediction of outcome.
What I See in These Files
In 14 years of law practice the word pretermitted does more damage through misunderstanding than any other term in the Florida Probate Code. People find it while searching for a way to challenge a will that cut them out, and they read it as the statute that covers them. It is not, and I would rather tell someone that on a first call than take a retainer against it.
The clients it does catch are almost never the ones expecting it. They are people who signed a perfectly good will, then married, or had another child, and never went back. I have read wills from the 1990s that were carefully drafted for the family the testator had at the time and were quietly overtaken by the family they went on to build. Avoid leaving a will in place through a marriage or a birth on the assumption that it still says what you meant, because the statute does not ask what you meant. It asks what the document said and when you signed it.
Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and our posted fees, not legal advice, and no attorney-client relationship is created. Whether these statutes reach your situation depends on dates and family facts, which we confirm at a free consult.