Thursday, October 22, 2015

Marital and Family Law: Until Death Do Us Part

By Kristi McCart

     A general rule is that when a person makes a will, he or she is able to direct who receives property after his or her death. However, in Florida, it is difficult to disinherit a spouse regardless of whether the parties are separated or dissolving their marriage at the time of death. If the dissolution has not been finalized with a judgment and a spouse dies, then the parties are treated as if they are still married. The surviving spouse is entitled to a percentage of the deceased spouse’s estate in what is known as the elective share.

     A person cannot unilaterally disinherit a spouse. The elective share provides a measure of financial protection for a surviving spouse who has been disinherited. Under current Florida law, a surviving spouse may elect to receive an amount of money that is equal to 30 percent of the decedent spouse’s estate, which includes nonprobate assets (including life insurance, pensions and retirements, joint assets, and assets in revocable trusts). § 732.2065, Fla.Stat. The elective share does not apply to irrevocable transfers that occurred prior to the date of marriage or before October 1, 1999.

     To circumvent the elective share, the parties should execute a prenuptial or antenuptial agreement that specifically references a waiver of homestead and elective share rights. In addition, the antenuptial agreement requires a full and complete disclosure of the parties’ assets and financial statements. In the probate context for the waiver of homestead and elective share, no financial disclosure is required for agreements executed prior to the marriage. § 732.702(2), Fla. Stat. Further, no consideration other than the execution of the agreement or waiver is necessary for its validity, whether executed before or after the marriage. Id.   

     If a married couple in the midst of a dissolution of marriage cannot agree to a marital settlement agreement, the couple will likely not agree to signing a reciprocal agreement waiving entitlement to each other’s estates. If the parties cannot reach an agreement and a spouse dies, the family law court loses its jurisdiction over the matter. At that time, the now estranged but still legal spouse may petition the probate court to be appointed as personal representative and make his or her election to take the elective share. Notwithstanding the elective share, the surviving spouse may also have an entitlement to the homestead protection and a family allowance of up to $18,000. See §§ 732.401, .403, Fla. Stat.

     In total, a decedent may not successfully and completely disinherit a spouse without a valid agreement or waiver. Florida’s probate laws regarding elective shares are complex, and an experienced probate attorney should be used to determine the rights of both the estate and surviving spouse.