Florida Probate Litigation Lawyer Blog

Articles Posted in Pretermitted Spouses

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.
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What happens when you marry someone after they have already made a will and sometime after the marriage your spouse dies without revising that will or making a new will? For example, Joe, a successful businessman from North Miami, creates a will leaving all of his property to his two sons. Several weeks later, Joe meets Sally, a doctor from Palm Beach, and they get married. Unfortunately, on their honeymoon Joe gets into an accident and dies without revising his will to include Sally. It may seem that because Sally is not provided for in the will before marriage that she will not be able to inherit from Joe’s estate.

However, Florida Statute 732.301 addresses this very scenario and provides that the surviving spouse will receive a share in the estate of their deceased spouse equal to what they would have received had their spouse died without a will (intestate). The spouse will then receive a share of the estate
When this occurs, the spouse is considered pretermitted.

Pretermitted means that the spouse was unintentionally disinherited because their deceased spouse did not provide for them by revising their already existing will or by making a new will. The theory behind pretermitted spousal rights is that the deceased spouse intended to provide for the surviving spouse but did not know their surviving spouse at the time they created their will or knew their surviving spouse, but was not contemplating marriage to the surviving spouse at the time they made their will.

However, there are exceptions which will not allow a spouse to claim they are pretermitted. First, a prenuptial or postnuptial agreement, providing for, or waiving the spouse’s rights to inherit. Second, when the surviving spouse is “provided for” in the will. “Provided for” means mentioned in the will while the testator (creator of the will) was contemplating marriage to the surviving spouse. Lastly, if the will discloses an intention not to make a provision for the surviving spouse. These three exceptions would preclude a surviving spouse from claiming they are pretermitted.

If you or someone you know lives in the Broward, Miami-Dade, or Palm Beach area, and believe that you have rights to estate property and require an experienced attorney to help you determine your rights, please call us. Our experienced probate litigation team at Chepenik Trushin LLP will help you receive your proper share of an estate.