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Wills for Single Floridians: What about Future Spouses and Children?

During my 2.5 years as a solo practitioner, I have been fortunate to prepare estate, disability, and health care planning documents for a number of single Florida residents.  Many of these individuals are either engaged or include marriage in their long-term plans.  Even though these individuals are generally healthy, they are worried what will happen to their property if they die.  I advise many of them that wills may be the best vehicle to dispose of their property upon their deaths.  At the time of their consultations with me, many clients my wish to leave property to their family or friends.  Nevertheless, they are also concerned as to how their property will be disposed if they die after marriage or after they have children (whether by birth or adoption), but have not updated their wills.  They often ask me whether their spouses and future children will inherit from them in those situations.  This blog posting will address these questions.

1) Overview of the Law: The law assumes that the testator (a person who has made a will) wants to provide for a spouse the testator later marries or for a child born or adopted after after the testator executes the will.  Pretermitted spouse is the legal term for a person who marries a testator after the testator has executed a valid will.  Pretermitted child is the legal term for a child born or adopted after the testator has executed a valid will.

2) When a Pretermitted Spouse Will Inherit: In general, if a testator marries after making a will and the spouse survives the testator, the spouse will receive a share equal to that which the spouse would receive if the testator died without a will (Fla. Stat. § 732.301).  Three exceptions to this rule exist:

a) The testator has provided for the spouse or the spouse had waived a right to inherit in a prenuptial or postnuptial agreement (Fla. Stat. § 732.301(1));

b) The spouse has already been provided for in the will (Fla. Stat. § 732.301(2)),  and the testator made that provision in contemplation of marriage (Estate of Ganier v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982)); or

c) The will discloses an intention not to make a provision for the spouse (Fla. Stat. § 732.301(3)).

Despite the three exceptions, a spouse may have certain rights to homestead property and under the Florida’s elective share statutes.

3) When a Pretermitted Child Will Inherit: In general, if a testator’s child is born or adopted after making the will and the child has not been advanced his share, the child will receive a share equal to that which the child would receive if the testator died without a will (Fla. Stat. § 732.302).  Two exceptions to this rule exist:

a) The omission from the will appears intentional (Fla. Stat. § 732.302(1)); or

b) All of the following are met:

(i) The testator had one or more children when the will was executed;

(ii) The testator devised substantially all the testator’s estate to the other parent of the pretermitted child;

(iii) The other parent survived the testator; and

(iv) The law allows the other parent to take under the will (Fla. Stat. § 732.302(2)).

 4) Conclusion: Even though Florida law provides for pretermitted spouses and pretermitted children (as discussed above), a person should consider updating his estate planning documents after he marries and upon the birth or adoption of each of his children.

I hope to soon write another blog posting that discusses how much a pretermitted spouse or child will inherit.

 

Want to further discuss these issues?  Feel free to contact me at 954-944-3929 or nrumbak@rumbaklaw.com.

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