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Your Plan

You draft a perfectly legal, binding will that is valid and enforceable in the State of Florida. You are remarried, a widow or widower and believe your last will and testament will be followed after your death. You plan to leave your estate to your children from the first marriage and your new spouse plans on leaving their estate to their children from their first marriage. Your will and/or trusts distributes all of your assets to your children, so they see no need to change your estate planning.

Florida Law and Spousal Share

In the state of Florida a surviving spouse is entitled to at least 30% of their spouse's estate. The 30% applies to all property owned individually, in a revocable trust and jointly owned property of the deceased spouse.

Under the Elective Share law, the surviving spouse CAN elect to claim his or her right to this share. Even if you and your spouse agree not to take the elective share and allow your estate to devise according to your will. However, at the time of your death, someone else could be making the decisions for your spouse, either through a Power of Attorney document or guardianship. Additionally, the finance situation could have changes and your spouse is now in need.

Regardless of discussions and oral conversations, your spouse has the legal right to take an elective share.

Homestead and Second Marriages

The terms of your will or trust are overruled by the Florida Constitution and statutes regarding homestead property. A surviving spouse and minor children have rights to the homestead property.

Florida statutes state that in the event the decedent is survived by a spouse or minor child the homestead cannot be devised by a will or trust. There is an exception if there is no minor child. In that instance the homestead may be devised to the surviving spouse.

Leaving, or devising as it is called, a homestead to another person other than your spouse is disallowed under Florida Statutes. Your surviving spouse shall receive a life estate in the property and at the time of their death the property shall go to your lineal descendants.

This will occur even if your intent was to leave your home to your parents, brother or other person.

The Fix

There is a way to ensure your estate planning wishes in spite of the Florida laws that are in place.

You and your spouse can waive your homestead and elective share rights through the use of a pre-marital agreement. A pre-marital agreement is not exclusively for the rich and only needs to address the estate planning issues so that your estate can be distributed according to your wishes.

In order to be valid and enforceable in Florida the agreement must be in writing and signed by both spouses in the presence of two witnesses.

You can now devise your property as you wish through your will, including provisions for your spouse without interference from Florida law.

If you had a pre-marital agreement prepared in another state you should have an attorney review it to make sure it accomplishes what you want.

Fortunately all is not lost if you are already married and did not execute a pre-marital agreement. You can accomplish the same thing with a post-marital agreement. If you are using a post-marital agreement, you and your spouse will be required to make a fair disclosure to each other on the nature and value of your estate.

At Kendrick Law Group, we understand that the process of probate. Contact us today to schedule a consultation.

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