Florida Probate Litigation Lawyer Blog
In today’s always changing and fast moving society, many individuals marry, divorce, and remarry over the course of their lives. Often times, a husband and wife will execute a joint will or separate wills during their marriage, leaving a substantial portion of their assets to one another. But, what is the effect of divorce upon a will if a new will is not executed subsequent to the divorce? Will the ex-spouse obtain assets that he or she was bequeathed or devised in a will executed during the previous marriage? Will the deceased’s current spouse be entitled to any of the deceased’s property that was bequeathed to the former spouse?
The Florida legislature has addressed these concerns in the Florida Statutes. In Florida, under what is known as the “Pretermitted Spouse Statute,” a spouse who marries an individual after that individual has executed his or her will is entitled to receive a share of the deceased individual’s estate equal in value to what the surviving spouse would have received if the deceased had died intestate (i.e., without a will). Fla. Stat. § 732.301. The surviving spouse is entitled to collect his or her pretermitted share from other property that was supposed to pass through intestacy and from property that was devised to beneficiaries under the will. Fla. Stat. § 733.805. The surviving spouse will continue taking devised property from individuals under the will until the pretermitted share is fully satisfied.
As with many other laws, there are exceptions to Florida’s Pretermitted Spouse Statute. The pretermitted spouse statute will apply to any surviving spouse of an individual who executed a will before the marriage, unless (1) the spouse and the deceased entered into a prenuptial or postnuptial agreement whereby the spouse waived his or her right to collect the deceased’s property, (2) the spouse is provided for in the will, or (3) the will makes it clear that the spouse is being left out of the will intentionally. If none of these three conditions are satisfied and the will was executed before the marriage, then the spouse is entitled to take as if the deceased died without a will, which can and often does leave the spouse with a significant portion of the deceased’s assets. In fact, if the deceased dies with no surviving lineal descendants, the surviving spouse may receive the deceased’s entire estate under the pretermitted spouse statute. See In re Dumas’ Estate, 413 So. 2d 58 (Fla. 5th DCA 1982).
It is important to note that this statute does not only apply when someone remarries. While remarriage is a common circumstance under which the pretermitted statute applies, any spouse of an individual who has executed a will before the marriage can collect under the pretermitted spouse statute, unless one of the three aforementioned exceptions apply.
If you or someone you know is a pretermitted spouse, has an issue regarding pretermitted spouses, or you would like to take appropriate action to ensure that you or your spouse is properly provided for in a will does not have to collect under the pretermitted spouse statute, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin are ready, willing, and able to assist with these estate planning needs. Please feel free to contact us for an initial consultation.
