On behalf of Law Offices of Frye, Fortich & Garcia, P.L. | June 15 2023 | Estate Administration & Probate
Losing a loved one is never easy, especially when that loved one is the person with whom you shared a home and life. The stress and grief may be compounded But, what happens if your spouse never updated their will to include you after you got married, or perhaps did not include you in a will executed after you got married. You may be concerned about your ability to inherit any of your spouse’s estate.
Pretermitted spouses
Under Florida law, if your spouse executed a will before getting married, and never updated the will after your marriage, then, generally, you, as the surviving spouse, are entitled to claim an intestate share of your spouse’s probate estate. Intestate share of an estate is the share as designated by Florida law that a beneficiary would receive had the decedent died leaving no will.
Your spouse’s probate estate would only include the assets passing through probate administration, and would not include assets held in trust or assets with designated beneficiaries. Your intestate share can range between 50% or 100% depending on whether your spouse had children, including stepchildren.
Elective share for spouses
If your spouse executed their will after your marriage, but neglected to include you as a beneficiary, you may still be entitled to inherit from their estate. Under Florida law, spouses are entitled to seek part of their spouse’s estate; this is known as an “elective share.”Currently, the elective share as is 30% of your spouse’s estate. The elective estate is not limited to just your spouse’s probate assets. The elective estate also includes other assets that belonged to your spouse. Including, for example, assets held in a revocable trust.
Other options for spouses
It is important to note that your right to claim an intestate share or an elective share can be waived in a legally enforceable prenuptial or postnuptial agreement. Both prenuptial and postnuptial agreements must meet very specific requirements to be enforceable and should only be drafted by a duly licensed attorney.
But there are other avenues for you to receive part of your spouse’s estate including property held as joint tenants or tenants by the entirety, homestead property, and being named as the beneficiary to accounts or policies.
When your needs and wants change, so too should your estate plan
Many people think that once an estate plan is executed, the work is done. But, when life changes, so should your estate plan. Major life events, such as a birth, a death, a marriage, a divorce, or even a move, can have serious consequences, and your existing estate plan might be insufficient to deal with these changed circumstances. When in doubt, you should consult with your estate planning professional to review your estate plan and help you determine if any changes are necessary given any change in circumstances or major life events.
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