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How a Marital Settlement Agreement Can Affect Your Will–Even Decades Later


A Florida resident is generally free to determine the terms of their own will. They can, for instance, choose to disinherit their adult children if they wish. But a person may also enter into a legally binding contract that subsequently affects the terms of their will.

For example, a prenuptial or postnuptial agreement might specify that each spouse agrees to make a will leaving their entire estate to the other spouse. Along similar lines, divorcing spouses might sign a marital settlement agreement that requires each spouse not to disinherit the couple’s children. Such agreements are subject to the same rules as any other contract in Florida, and that may be enforced years–or even decades–after they are signed.

Florida Probate Court Enforces 1970 Divorce Agreement Against Deceased Father’s Estate

Take this recent decision from the Florida Third District Court of Appeals. In Haskin v. Haskin, the male decedent passed away in 2017. The decedent married his first wife in 1953. The couple had four children. The wife filed for divorce in 1969.

In 1970, the parties signed a marital settlement agreement, which was incorporated into a final divorce decree entered by a court in New Jersey. The agreement required the decedent “to promptly make and execute a Last Will and Testament” that included a provision leaving at least 50 percent of his net estate to any “then living children.” This agreement was later domesticated in Florida.

The decedent quickly remarried and had another child with his second wife. (The decedent also adopted the second wife’s child from her prior marriage.) In 2014, the decedent signed a new will that effectively disinherited three of his four children from the first marriage. After the decedent’s death three years later, his second wife–now his widow–filed the will for probate in Florida.

The decedent’s three disinherited children filed suit, alleging their father’s 2014 will violated the marital settlement agreement signed with their mother. As they were the “intended beneficiaries” of that agreement, the children sought specific performance in the form of their rightful share of the father’s estate. A Florida trial court agreed and granted summary judgment to the children.

On appeal, a divided three-judge panel affirmed the trial court. The majority held that under the “plain language of the sentence at issue,” the decedent agreed to leave 50 percent of his estate to be divided among the four children with his first wife. The Court rejected the widow’s argument that since the agreement was “silent” on the decedent’s right to later remove the children from his will, that meant the 2014 disinheritance was permissible.

The dissenting judge sided with the widow. He wrote separately to argue that the settlement agreement only required the husband to “make and execute” a will that left 50 percent to the children. That language did not, in his view, require the decedent “to maintain such a will until the day he died or that a will that complied with [the settlement agreement] was irrevocable. ”

Contact Florida Estate Litigation Attorney Mark R. Manceri Today

As you can see, reasonable judicial minds can differ when it comes to interpreting a contract or agreement that affects a party’s rights when making a will. If you are involved in a similar dispute it is important to seek guidance from a qualified Pompano Beach prenuptial and postnuptial agreements lawyer. Contact Mark R. Manceri, P.A., today to schedule a consultation.



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