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The Rights of a Surviving Spouse: Part One

Clients and their children are often shocked to learn that a surviving spouse has certain minimum rights to the deceased spouse’s property under Florida law.  These rights exist by virtue of marriage and can only be waived in a very particular manner.  They include the right to inheritance as a “pretermitted spouse, family allowance, elective share, homestead, and preference in appointment as personal representative.  For part one of this multi-part blog, I will address the concept of a pretermitted spouse and family allowance.

Pretermitted Spouse

It is certainly not unusual for individuals to enter subsequent marriages and to have executed a Will long before saying, “I do.”  The most common example is the father or mother who leaves everything to their children before remarrying days, months, or often years in the future.  But what if this hypothetical person never updates their Will after having married their new husband or wife?

In such an example, the spouse is considered a “pretermitted spouse” and is protected from being unintentionally disinherited. Save for a few exceptions, Section 732.301, Florida Statutes, provides that when a person marries after making a will and the spouse survives the person who made the will, the surviving spouse will receive a share in the estate of the deceased individual equal in value to that which the surviving spouse would have received if the individual had died without a Will.  This equates to a share of either 50% or 100% depending upon whether the deceased spouse had children from a prior marriage.

Statutory exceptions to this rule include: (i) a provision was made for, or waived by, the spouse by prenuptial or postnuptial agreement; (ii) the spouse was provided for in the Will; or (iii) the Will disclosed an intention not to make provision for the spouse.

Section 732.301 often causes consternation for the families of deceased individuals because it is rare that the surviving spouse actually “unintentionally disinherited” the surviving husband or wife.  Most of the time, the decedent assumed that “a Will is a Will” and that it would be honored regardless of changes in the future.  Had there been knowledge of the law, a potentially unintended result could have been easily avoided by entering into a marital agreement or simply updating one’s Will to confirm their post-marriage intentions.

For this reason, it is of vital importance that individuals contemplating marriage meet with legal counsel to discuss their estate plan and the advisability of a prenuptial agreement.