Florida Probate and Trust Litigation Blog

What happens if a new spouse is accidentally left out of an estate plan?

Unfortunately, estate planning is not always at the front of our thoughts. Once an estate plan is drafted, updating that estate plan is even further from our minds.What is a Petition for Revocation of Probate?

As second marriages are very much commonplace in society, what happens when marriage occurs after the last estate plan was executed? Fortunately, the Florida legislature has contemplated this circumstance. In Florida, when a person marries after making a will, the surviving spouse gets to receive the share of the estate had the testator died without a will. That surviving spouse is known as a pretermitted spouse.

What is the Effect of a Divorce on an Estate Plan?

First, it is important to note that a divorce terminates a provision in a will that provides for the ex-spouse. Florida Statutes Section 732.507 outlines the termination:

732.507 Effect of subsequent marriage, birth, adoption, or dissolution of marriage.—

(1) Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.

(2) Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

 

History.—s. 1, ch. 74-106; s. 113, ch. 75-220; s. 3, ch. 90-23; s. 45, ch. 2001-226; s. 14, ch. 2007-74.

Note.—Created from former ss. 731.10, 731.101, 731.11.

What is a Pretermitted Spouse? - Florida Statute Section 732.301

The statute governing the inheritance of a pretermitted spouse is outlined in Section 732.301, Florida Statutes:

732.301 Pretermitted spouse.—When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the will; or

(3) The will discloses an intention not to make provision for the spouse.

The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.

History.—s. 1, ch. 74-106; s. 16, ch. 75-220; s. 9, ch. 77-87.

Note.—Created from former s. 731.10.

What is the Primary Purpose for this Statute?

"The primary purpose of the pretermitted spouse rule is to assure that the decedent spouse considered the surviving spouse as a spouse when making his or her will" Ganier's Estate v. Ganier's Estate, 418 So. 2d 256, 257 (Fla. 1982).

What is the value of the intestate estate for a surviving spouse in Florida?

Since the statute provides that a pretermitted spouse receives a share of the estate equal to their "intestate share," what is that share? A spouses intestate share of an estate is also guided by Florida Statutes Section 732.102:

Contact Us:

PersanteZuroweste brings actions to invalidate estate planning documents and defends claims that estate planning instruments are invalid. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.