Copyright © 2019, The Law Office of Alain Roman, PLLC
In Florida, surviving spouses have certain rights with regards to the estate of a decedent spouse. The typical rights which we will discuss further below include the elective share, intestate share, pretermitted share, homestead exempt property, family allowance, and preference in appointment as personal representative of an intestate estate.
In today’s age, it is not uncommon to have blended families. When spouses have children from different marriages, it is normal for the parent to want to dispose a large portion of their estate to their children.
In Florida, a surviving spouse is the only personal legally entitled to inherit from a deceased spouse. Although the Florida Intestacy Statute provides for the children of the deceased spouse if he or she passes away without a last will and testament, the children are not legally entitled to inherit if the parent creates a last will and testament providing their estate to his or her spouse or some other third person.
Typically, the most valuable asset for most people is their home. The primary residence in Florida is usually your Homestead. Homestead provides that if you are married (with no minor children) you may only transfer your Homestead under a will or a trust to your spouse. To bypass this restriction, then a waiver of spousal rights, specifically waiving Homestead rights is necessary.
In addition, when doing estate planning for married couples, waivers of homestead, and other spousal rights are waived to divide the interest of the spouses. But in most of the cases the waiver of spousal rights is done to provide for someone other than the surviving spouse.
There is no particular form used to waive the spousal rights outlined in Section 732.702. However, certain requirement must be met for the waiver of spousal rights to be effective in Florida.
First, the spouses must enter into a written contract, agreement, or waiver, which must be signed by the spouse waiving the spousal rights, in the presence of two witnesses. The importance of a writing is paramount. It is also important to have the requisite witnesses as the spousal waives has testamentary dispositions.
Depending on whether the spousal waiver occurs before or after the marriage, Section 732.702 imposes additional requirements.
If the spousal contract, agreement, or waiver is executed after the marriage, then Florida law requires that each spouse provides a fair disclosure to each spouse of his or her assets. However, if the spousal waiver occurs prior to the marriage, then no such disclosure is required for such contract, agreement, or waiver.
Like I mentioned before, there is no specific form for a waiver of spousal rights in Florida. A spouse can waive all rights all just an individual right. Typically, the right that is waived the most often is the Florida Homestead due to its restrictions.
I would discourage you of using a form you find online if you are able to find one. The reason for this is that the requirements I covered above are very strict. You have to give your spouse time to find an attorney and to review the document. You must also be sure to give a fair disclosure of the assets involved.
The last thing you want is your spousal waiver to be invalidated by a court in the future.
Absent a waiver of spousal rights, your spouse is entitled to a share of your estate called the “elective share.” The elective share is amount equals to 30% of the elective estate. The elective estate is all inclusive, it includes probate property, pay-on-death accounts, property in your revocable trust, among others.
If you are considering disinheriting your spouse then think again. Your surviving spouse may file a timely election to obtain the benefits of the elective share statute.
In Florida, if you pass away without a last will and testament, the Florida intestacy statute will control the distributions. Your surviving spouse is entitled to 100% of your assets if you have no children outside of the marriage. However, if you have children outside of the marriage, then your spouse is entitled to 50% and your children will take the other 50%.
As you can see, under the intestacy statute, the surviving spouse is entitled to a higher percentage than the interest received under the elective share election.
This situation occurs when you create a last will and testament prior to marriage. In this case, your 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.
Your primary residence in Florida is typically considered to be your Homestead, subject to certain restrictions. Florida law dictates that your 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.
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.
If your spouse waives his or her homestead rights, then he or she will be treated as having predeceased you for the purpose of Homestead.
The waiver of Homestead rights is one of the must utilized waivers under Florida law. This is specially true for second or third marriages when one of the spouses had title to the Homestead.
A surviving spouse and the you lineal heirs (sons and daughters) are entitled to a reasonable allowance in money out your estate during the administration if they were being supported by you or if you were legally obligated to support your spouse.
The maximum amount allowed under Florida law is $18,000. The family allowance is not chargeable against any benefit or share passing to your spouse unless expressly provided otherwise in your last will and testament.
In intestate estates (you died without a last will and testament), the your spouse has preference in appointment as personal representative of your estate during the probate administration.
The personal representative is in charge of handling your affairs, paying your creditors with the assets of your estate, and making distributions of your assets based on court order.
This is one area of the law where it is very important to talk to an attorney and not use a do-it-yourself form. The typically waiver forms you see online are not adequate to impose a valid spousal waiver.
Spousal waivers can be used strategically for proper estate planning. Spousal waivers are not only used to disinherit another spouse.
If you have any questions or you are interested in creating a spousal right waiver, then be sure to give me a call at (305) 489-1415.