Florida Waiver of Spousal Rights

FLORIDA WAIVER OF SPOUSAL RIGHTS

Florida Statutes section 732.702(1) allows a waiver of spousal rights, before or after marriage, by executing a written contract, signed by the waiving spouse in the presence of two subscribing witnesses. Specifically, a surviving spouse may waive, wholly or partially, his or her rights to an elective share, intestate share, pretermitted share, homestead exempt property, family allowance, and preference in appointment as personal representative of an intestate estate.[1] Unless the waiver of spousal rights provide to the contrary, a waiver of “all rights,” or equivalent language is a waiver of all the rights enumerated hereinabove.[2]  A waiver of spousal rights is particularly useful when one remarries, and the spouse wants to ensure that the children from a previous marriage receive the bulk of the estate assets.

If the waiver of spousal rights is executed after marriage, then Florida law requires that each spouse provide a fair disclosure to the other spouse of his or her state.[3] On the contrary, if the waiver of spousal rights is executed prior to the marriage, then no financial disclosure will be needed.[4] The Statute also states that no consideration is needed to make the waiver of spousal rights valid, even if executed before or after the marriage.[5]

SPOUSAL RIGHTS

Elective Share. In Florida, absent a waiver of spousal rights, the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective share of the decedent in the amount of thirty percent (30%).[6] A Florida decent will not be able to disinherit a surviving spouse as the property included in the elective share is very inclusive, including but not limited to, the decedent’s probate estate, protected homestead, ownership interest in accounts or securities registered in pay on death, and assets in a revocable trust.[7]

Intestate Share. In Florida, if the decedent dies without a last will and testament, the surviving spouse is entitled to the entire intestate share of the decedent if there is no surviving descendant or if the surviving descendants are the same descendants of both spouses.[8] If either the decedent or the surviving spouse have descendants outside of the marriage, then the surviving spouse will be entitled to fifty percent (50%) of the intestate share.[9] The intestate estate of a decedent includes any part not effectively disposed by will or by operation of law.[10]

Pretermitted Share. In Florida, when a person marries after creating a will, and the surviving spouse survives the decedent spouse, the surviving spouse will receive a share in the estate of the decedent equal to what he or she would have received in the intestate share of the decedent, unless 1) a provision had been made for, or waived by, the surviving spouse in a marital agreement; 2) the surviving spouse is provided for in the will; or 3) the will discloses an intention not to make a provision for the spouse.[11]

Homestead. In Florida, the homestead shall not be subject to devise (disposition by will or in trust) if the owner is survived by a spouse or a minor child or minor children, except that homestead may be devised to the owner’s spouse if there is no minor child or minor children.[12] If improperly devised, the homestead descends in the same manner as other intestate property’ but if the decedent is surviving by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants in being at the time of death, unless the surviving spouse elects to take an undivided one-half interest in the homestead as tenants in common with the decedent’s descendants, in lieu of the life estate.[13] If a surviving spouse waives his or her homestead rights, she is treated as having predeceased the decedent for the purpose of homestead.[14]

Family Allowance. In Florida, a surviving spouse and the decedent’s lineal heirs are entitled to a reasonable allowance in money out of the estate of the decedent during the administration of the estate if the decedent was supporting or was obligated to support the surviving spouse.[15] The maximum amount allowed under Florida law is $18,000.[16] The family allowance is not chargeable against any benefit or share passing to the surviving spouse unless expressly provided otherwise in the decedent’s will.[17]

Preference of Appointment as Personal Representative in Intestacy. In intestate estates (decedent died without a will), the surviving spouse has preference in appointment as personal representative of the decedent’s intestate estate.[18]

Give us a call today if you have any questions regarding waiver of spousal rights. In Florida, waivers are important for proper estate planning, specially with the limitations provided by Florida law to the devise of homestead. Please share this article if you find it helpful.

 

[1] Fla. Stat. § 732.702(1)(2018).

[2] Id.

[3] Fla. Stat. § 732.702(2).

[4] Id.

[5] Fla. Stat. § 732.702(3).

[6] Fla. Stat. § 732.2065.

[7] Fla. Stat. 732.2035.

[8] Fla. Stat. 732.102.

[9] Fla. Stat. 732.102.

[10] Fla. Stat. 732.101(1).

[11] Fla. Stat. 732.301.

[12] Fla. Stat. 732.4015(1).

[13] Fla. Stat. 732.401(1).

[14] City Nat’l Bank v. Tescher, 578 So. 2d 701 (Fla. 1991).

[15] Fla. Stat. 732.403.

[16] Id.

[17] Id.

[18] Fla. Stat. § 733.301(1)(b).