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How Prenuptial Agreements Can Affect a Spouse’s Right to Administer a Florida Probate Estate


A person dies “intestate” when they have no will. Florida law directs the administration of intestate probate estates. Among other things, the law establishes who has “preference” when it comes to being named personal representative of the estate.

Under Section 733.301 of the Florida Statutes, if the deceased person (decedent) was married at the time of their death, then the surviving spouse has first preference. But the surviving spouse can waive this right. Indeed, if the spouses signed a prenuptial or postnuptial agreement during their lifetimes, there may be language whereby each spouse waives “all rights” in the probate estate of the other spouse, including the right to serve as personal representative under Section 733.301.

Florida Appeals Court Finds No Conflict in Terms of Prenup

The Florida Sixth District Court of Appeal recently addressed such a waiver. In Hughes v. Angelo, the decedent and his wife had children from prior marriages. Before their marriage in 2005, they signed a prenuptial agreement that contained a waiver of “all rights” in each other’s estates. The agreement further stated that each spouse was free to dispose of their property by will. But in the absence of a will, the deceased spouse’s probate estate “shall descend to the heirs of that party as if the marriage had taken place.”

Sixteen years later, the decedent passed away. He did not leave a will or nominate a personal representative to administer his estate. The wife subsequently filed a petition with a Florida probate court to be appointed as personal representative under Section 733.301. The decedent’s children from his prior marriage objected. They argued she waived any right to serve under the prenuptial agreement.

The probate court disagreed. It interpreted the prenuptial agreement to mean that if the decedent failed to leave a will, that revived the wife’s “right to be treated as Decedent’s surviving spouse.” The court therefore held the wife could be appointed as personal representative.

The children appealed, and the Sixth District agreed with them on this issue. The appellate court said the terms of the prenuptial agreement only restored the wife’s right to inherit from her husband’s intestate estate. It did not revive any other rights, including the right to be appointed personal representative. As such, the wife’s general waiver of “all rights” continued to apply.

Contact Florida Estate Litigation Lawyer Mark R. Manceri Today

Cases like this illustrate the importance of carefully reviewing–and understanding–a prenuptial agreement before signing on the dotted line. Any ambiguous or potentially conflicting terms can lead to litigation years down the line. And that in turn can frustrate the goal of entering into such agreements in the first place.

If you are involved in any kind of Florida probate dispute and need legal advice from a qualified Pompano Beach estate and trust litigation attorney, contact the offices of Mark R. Manceri, P.A., today to schedule an initial consultation.

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