Estate Planning Florida
Can you cut your spouse out of your Will or Estate? Elective Share and Homestead Rights of Spouse in Florida.
Can you cut your spouse out of your Will or Estate?Maybe, but probably not, generally speaking. Unless you created a valid prenuptial or postnuptial agreement with full disclosures it is not likely that you are able to exclude your spouse from anything, no matter what your estate planning documents say or how they are prepared.
This scenario usually comes up in second marriages and beyond when both spouses have children from their previous marriages and now they would like to keep their assets separate so that they can leave their estate to their children from the first or previous marriage.
The people who do undertake preparation of estate planning often do not realize that once they are married there are now certain limitations of what they can do with their estate and how they can treat their spouse based on Florida Statutory Laws and protections. In short, this means that their estate planning Will and or Trust will be overridden and or ignored to a certain degree.
Florida has recently made substantial changes to spousal elective share rights and laws and anyone planning an estate in general, but particularly in a second marriage or beyond should be aware of what these laws say and whom they protect and to what degree that they protect a spouse.
The "Elective Share" that a spouse is entitled to, is a provision under Florida Law which entitles a decedent's spouse to elect to receive a certain percentage of the estate, regardless of what a Will or other testamentary instrument says. The elective share is available to a surviving spouse, even to one whom the decedent purposefully did not provide for in the decedent's testamentary plan. This means if you left your spouse out of your Will and or Trust, this will be ignored in accordance with Florida Laws.
The elective share equates to 30 percent of the net value of the "elective estate." (See, Section 732.2035, Florida Statutes) This further lists the decedent's assets that are included in the elective estate. These assets include the probate estate, as well as several categories of assets that do not pass through probate.
In a case in which a surviving spouse is not left assets equal to at least 30 percent of the elective estate in the testamentary plan, the amounts due the surviving spouse will need to come from assets that may be allocated to other persons. Beneficiaries who have received a distribution of property that are included in the elective estate, as well as "direct recipients are liable to contribute to satisfying the elective share. (See, Section 732.2085(1), Florida Statutes). This means that you as a beneficiary will potentially have to repay those assets that you received as part of the elective share rights of the spouse if you have already received estate assets and benefits.
An additional point of note: there are special protections and rights that apply to the spousal/family Homestead. The valuation of the Homestead as it relates to the elective share is determined by the interest that the surviving spouse takes in the Homestead (See, Florida Statute 732.2055). A spouse has specific Homestead protections under Florida Law unless waived and these rights work in conjunction with the elective share protections.
Can you cut your spouse out of your Will or Estate?The Florida Constitution specifically provides that the family homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there are no minor child (See, Article X, s. 4(c), Florida Constitution). The clear intent and purpose of this provision is to prevent a surviving spouse from losing their home when a spouse dies. Section 732.401, Florida Statutes, implements this provision. It provides that a homestead is not devised according to law (estate planning, Will or Trust), the homestead is instead passed on as if the decedent died without a will. If a decedent is survived by a spouse and one or more descendants, the spouse can take a life estate in the homestead and the other descendants take per stirpes.
The surviving spouse can also make the choice to take an undivided one-half interest in the homestead in lieu of the life estate. (See, Florida Statute 732.401). Note, there are deadlines for the surviving spouse to take the option of the elective share. Generally, the surviving spouse must file the election that they will be taking their elective share no later than 6 months after the date the surviving spouse is served with the estate's Letters of Administration (See, Section 732.2135(1), Florida Statutes).
The Florida Statutory Elective Share Rights and Homestead Rights are some of the more complicated aspects of both estate planning and later probate, these issues become even more complicated when estate planning is undertaken and these laws and rights are not considered and weighed by individuals using online and out of the box do it yourself estate planning or even legal counsel not well versed with Florida Estate Planning Laws. Most people undertaking estate planning (do it yourself Will's usually), wrongly assume they can just leave their assets to whomever they wish in a first, second or beyond marriage; this simply is not the case,
A good starting point for anyone interested in knowing more about the Florida Statutes mentioned in this article can visit http://www.leg.state.fl.us/STATUTES , Florida Statutes Estates and Trusts, Chapters 731-740 and specifically 732.
If you have any questions related to getting started with your estate planning (Wills, Trusts, Power of Attorney, Living Wills/Healthcare Directives and so forth), feel free to contact me for more information at 866-894-4995, 407-580-5491, [email protected] I am happy to assess your situation and needs and answer any questions related to this article or your estate and probate needs.