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What is a Pretermitted Spouse?

| Apr 28, 2020 | Estate Planning, Probate |

Often when married couples have their estate documents prepared, they will provide for each other. A husband’s Last Will and Testament (“Will”) may leave everything to his wife and vice versa. This sort of inheritance seems natural. But what happens if the couple had their Will or Trust prepared before they got married? At the time, the other spouse might not have even been in the picture. So, if the spouse doesn’t update their estate documents after getting married, is the new spouse out of luck? One answer in Florida is that it depends on whether the spouse fits within the “pretermitted spouse” statute.

A pretermitted spouse is a spouse who would likely stand to inherit under a Will, but was not included in the Will because he or she was not yet married to the testator or testatrix at the time the Will was written. Florida has a statute that deals with this situation. Section 732.301, Fla. Stat. provides:

When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:

(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

(2) The spouse is provided for in the will; or

(3) The will discloses an intention not to make provision for the spouse.

An example might help demonstrate how this works. Sam is a successful divorced adult man who has two children from the marriage to his ex-wife. Sam goes to his estate planning lawyer and has a Will prepared. Sam sets his Will up so that it leaves all of his estate to his children equally. Three years after Sam establishes his Will, he marries Ellen. Although Sam means well, he never goes back to his estate planning lawyer to update his Will. Then, tragically, Sam is killed in a car accident. So is Ellen out of luck? So long as none of the statutory exceptions apply, the answer is “No.” Under Florida’s pretermitted spouse statute, Ellen will be entitled to receive the same share she would have received if Sam had died intestate, i.e. without a Will. In this case, she would receive one-half of the estate and the children would receive the other half.

What would happen if Sam and Ellen had entered into a prenuptial agreement? Depending on the language of the prenuptial agreement, Ellen could very well be out of luck. Most Florida prenuptial agreements waive a spouse’s rights under Florida law, including under the pretermitted spouse statute.

In our estate planning practice, we encourage our clients to come back to us for a review of their plan every few years. We also direct that if they have a major life event such as a marriage, death, birth, divorce, etc. they should come in so we can assess whether any changes are needed.

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