A Prenuptial Agreement (a/k/a Prenup) is a contract used to keep some (or all) of each spouse’s assets separate in the event of divorce and/or death. It’s an estate law and family law vehicle used in Florida to preserve “non-marital” assets for the benefit of people other than a spouse – such as adult children from a prior marriage. Without a Prenup, each spouse’s assets upon death and/or divorce, will be distributed according to Florida law, which oftentimes is not at all what one or both spouses would want. With a Prenup, the couple (and not the state of Florida) are able to decide how to distribute the assets between themselves as well as to other beneficiaries, upon death and/or in the event of a divorce.
When a person marries or remarries, each spouse assumes legal rights and responsibilities. Among those is a right found in the Florida Constitution, which protects each spouse’s homestead right. The reason for this is so that spouses will not be left without a home, and Florida has one of the strictest protections available. This means that if you own or buy a home as the “sole owner” on the title, and then you marry, and your spouse whose name is not on the title also lives in the home with you, your new spouse acquires the right to reside for life in your marital home when you die, unless you and your spouse-to-be both signed a properly drafted, executed and enforceable Prenuptial Agreement and your new spouse waived his or her “homestead rights”. Also, without a Prenuptial Agreement, your new spouse’s signature would be required in any conveyance of your homestead, whether a sale to a third party, or, for an equity loan or mortgage taken on the residence since such home is now the marital home of both (i.e. your homestead).
In addition to the right to a life estate in a deceased spouse’s homestead, a new spouse also acquires other rights such as an elective share right. This means that the surviving spouse will be entitled to 30% of the deceased spouse’s “Elective Estate”, which includes both probate assets (such as assets held in the deceased spouse’s name alone), and, non-probate assets (such as assets where the deceased spouse named a beneficiary such as on bank accounts, securities, IRA accounts, jointly held property, annuities, certain interests in trusts, and the cash value of life insurance). This means that if you have children from a prior relationship and you signed a Will and/or Trust and you left your entire estate to your children, and then you married but failed to make a new Will and/or Trust, your surviving spouse would be entitled to 30% of your elective estate, and/or 50% of your probate estate which is the share your spouse would have received had you died without a Will since your surviving spouse would then be considered a “pretermitted spouse” (in other words, omitted from the pre-marriage Will). This is so because the law makes the assumption that you would have provided for your spouse if you had signed a Will and/or Trust after the date you marriage.
Without knowing the specific assets involved, it is hard to determine which assets would be subject to probate, and therefore, hard to say whether the pretermitted share would be greater or less than the elective share – however, your surviving spouse has the right to claim the greater of the two. On the other hand, if you signed a Will and/or Trust after you married, but still failed to provide for your surviving spouse when devising your assets including your homestead (even if purchased by you before you married your surviving spouse), then your surviving spouse would have acquired homestead rights for life and may also elect 30% of your elective estate.
In addition to the right to a life estate in a spouse’s homestead (homestead rights) and elective share rights, a surviving spouse also has an exempt property right and family allowance right. The property right entitles him/her to household furniture, furnishings and appliances from the residence of up to $10,000, and to any automobiles held in the name of the predeceased spouse and used by the immediate family as well as to the predeceased spouse’s interest in certain program contracts and employee death benefits. And the family allowance right gives the surviving spouse a family allowance of up to $18,000). Lastly, a surviving spouse is also given preference in appointment as personal representative of an intestate estate.
If you would like to devise your estate to your beneficiaries of choice, a properly drafted and executed Prenuptial Agreement, Waiver of Homestead Rights, and Waiver of Elective Share Rights, together with a properly drafted and executed Estate Plan that reflects careful choices when appointing your fiduciaries and designating your beneficiaries, are vehicles that will protect your estate so that your assets are distributed in accordance with your wishes following your death.
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