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Can I Still Serve As My Late Spouse’s Executor If They Died While Our Divorce Was Pending?


When a married person dies in Florida, their surviving spouse has certain statutory rights. This includes the right to a certain share of their deceased spouse’s estate, as well as first priority to be appointed as personal representative of that estate. These rights may be waived, however, through a written contract or agreement signed before or during the marriage. For example, if the spouses previously signed a prenuptial or separation agreement where the surviving spouse explicitly waived their rights, such waiver would be legally binding. A divorce would also automatically terminate the now-former spouse’s rights in the other party’s estate.

Florida Appeals Court: Lack of “Complete” Property Settlement Preserved Wife’s Spousal Rights Despite Pending Divorce

But what about a scenario where a couple was in the process of getting divorced when one spouse died? Does the surviving spouse still have the same rights with respect to their estranged partner’s estate? And what if there was a partial agreement regarding the division of property in the pending divorce? Does that affect any spousal rights?

The Florida Fourth District Court of Appeals recently addressed a case that raised these very questions. In Merli v. Merli, the brother and wife of a deceased Florida man each claimed the right to be named personal representative of his estate. At the time of his death, the decedent was still married to his wife, although their divorce case was still pending. The spouses had previously signed a “partial settlement agreement” that divided some of their marital assets. A Florida court had approved that agreement but had not yet legally dissolved the marriage when the decedent passed away.

The decedent’s brother argued the partial settlement agreement constituted a waiver of the wife’s spousal rights over her husband’s estate. The probate court, and ultimately the Fourth District, disagreed. The courts found that the wife’s spousal rights remained intact.

As the Fourth District explained, a “complete property settlement” signed as part of a divorce proceeding can serve as a waiver of a spouse’s rights in the other spouse’s estate. But the agreement in this case was not a complete settlement “as it did not clearly, specifically and explicitly settle all matters of dispute between the parties.” There were several unresolved issues that were still pending before the divorce court. The husband’s death forced that court to dismiss the divorce case, which meant the wife was in the same legal position as anyone else whose marriage ended by death rather than divorce. And given there was nothing in the language of the partial settlement that expressly waived the wife’s spousal rights, she was as a matter of law entitled to be named as personal representative of the estate. 

Speak with a Florida Probate Litigation Lawyer Today

The decedent in the case above left no will. He thus waived his right to nominate his own personal representative. Oftentimes, the absence of clear instructions from a decedent serves as the catalyst for litigation between surviving family members. If you are in such a position and need advice from a qualified Pompano Beach estate and trust litigation attorney, contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.


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