How Changes to Your Family Can Affect Your Will
Any Florida estate planning lawyer will tell you that making a will is usually not a one-shot deal. As you experience changes in your life, you will want to review and possibly revise a will that you executed several years ago. But what happens if you never update your will? More precisely, how can subsequent changes to your family affect the enforcement of an older will that is never revised?
Pretermitted Spouses and Children Under Florida Law
Let’s consider a simple hypothetical scenario where Joseph makes a will in 2019. Two years later, in 2021, Joseph marries Anne. Two years after that, in 2023, Joseph dies unexpectedly. Joseph never updated his 2019 will, which made no provision for Anne, as they were not in a relationship at the time. Does this mean Anne cannot inherit from Joseph’s estate?
Under Florida law, the short answer is “no.” Section 732.301 of the Florida Statutes provides for what is described as omitted or “pretermitted” spouses. Essentially, if a testator (a person making a will) marries after executing their will and the spouse survives the testator, the spouse is entitled to the same share of the testator’s estate that they would receive had the testator died without a will. So under this law, Anne could claim her “elective share” of Joseph’s estate as the surviving spouse.
Now, there are a couple of exceptions to this rule. First, if Joseph and Anne signed a prenuptial or post-nuptial agreement where they each waived their right to inherit from the other’s estate, then Anne could not claim a share of Joseph’s estate under Section 732.301. Similarly, if Joseph had amended his will to either include Anne or explicitly disinherit her, then the pretermitted spouse rule would not apply.
But what about pretermitted children, i.e., children both or adopted after the testator made their will? This situation is governed by Section 732.302. The basic rule here is that such children are entitled to inherit a share of the parent’s estate “equal in value” to what they would have received had the parent died without a will. The law does make allowance for advanced distributions of property to the child before the parent’s death. And similar to Section 732.301, a pretermitted child may still be excluded from inheriting if it “appears from the will that the mission was intentional.” Additionally, if the testator had one or more children when they signed the will and left substantially all of their estate to the other parent of the pretermitted child, then the pretermitted child is not entitled to claim a share of the estate, provided the other parent survives and actually inherits.
Contact Florida Estate Litigation Attorney Mark R. Manceri Today
If you are involved in a legal dispute over someone claiming to be a pretermitted spouse or child–or you yourself are such a person–it is best consult with a qualified Pompano Beach omitted heir lawyer. Contact the offices of Mark R. Manceri, P.A., today at 954-491-7099 to schedule a consultation.