A Pre-Nuptial Agreement (also sometimes called a Pre-Marital Agreement) is a contract between two prospective spouses setting forth their rights in two main scenarios: 1) if they marry and later divorce; and 2) if one spouse dies while the parties are still married. This blog will discuss how the Pre-Nuptial Agreement impacts a surviving spouse’s right to inherit if one spouse dies.
Under Florida law, spouses have certain rights when it comes to inheriting if their spouse dies. These can include the right to elect a 30% spousal share of the spouse’s estate, the entitlement to certain support (known as Family Allowance) and the right to receive certain exempt property, including homestead and the decedent’s vehicle. These rights are available as a matter of law regardless of whether the spouse has a Will. Often when a person enters into a Pre-Nuptial Agreement, these rights are waived or released. This means that the surviving spouse will not be entitled to these benefits as a matter of law.
However, although most Pre-Nuptial Agreements waive or release rights to the elective share, exempt property and to family support, this may not mean that the surviving spouse is left with nothing. The Pre-Nuptial Agreement may provide that notwithstanding the provisions waiving elective share, etc. the spouse can still devise part or all of their estate to the other. Nothing in the Pre-Nuptial Agreement prevents the spouses from naming each other as beneficiary under their Will, Trust or beneficiary designation (such as life insurance). If a spouse is named in such a circumstance, then the spouse will still receive what was devised to them. The difference arises from the fact that the spouse must name the surviving spouse as beneficiary-otherwise, there is no automatic right to inherit.
An example might be helpful. Assume that Jack and Jill enter into a Pre-Nuptial Agreement before they marry. That Agreement provides that they each waive spousal elective share, homestead, etc. If Jack then dies, whether Jill receives anything will depend on Jack’s Will, Trust or beneficiary designations. Jill will not receive anything as a matter of law. If Jack left her nothing, then she’s out of luck. If Jack left her something in his Will, then she’ll receive what he left her. Had there been no Pre-Nuptial Agreement, if Jack left Jill nothing under his Will, she could still receive through the spousal elective share (30%), homestead, and other rights available to a surviving spouse.
A person contemplating entering into a Pre-Nuptial Agreement should always first seek legal counsel. The same is true if a spouse dies and the surviving spouse was subject to a Pre-Nuptial Agreement. Finally, always tell your estate planning lawyer if you have a Pre-Nuptial Agreement-knowing this may impact what goes into your estate documents.