When a married person passes away, their surviving spouse has certain rights regarding the deceased spouse’s estate. Under Florida’s waiver of spousal rights statute, surviving spouses may waive some or all of these rights.
What is Florida Probate Code Section 732.702?
Section 732.702 is Florida’s waiver of spousal rights statute, and it details the requirements for a waiver of spousal rights and the spousal rights that can be waived.
A surviving spouse may waive the following rights, wholly or partly, before or after marriage:
- Elective Share — The surviving spouse of a person who dies domiciled in Florida has the right to receive an “elective share,” which is 30% of the “elective estate.” In most cases, the “elective estate” will include most of a deceased person’s assets, including some assets that are not subject to probate.
- Intestate Share — The surviving spouse of a person who dies without a will is entitled to their “intestate share” of the decedent’s estate. The percentage of the spouse’s “intestate share” varies depending on the circumstances.
- Pretermitted Share — When a person marries after making a will and their spouse survives them, the surviving spouse may be entitled to receive a “pretermitted share” of the estate in an amount equal to an “intestate share.” The surviving spouse is not entitled to the “pretermitted share” if : they have waived the right; they have been provided for in the will or in a prenuptial or postnuptial agreement; or the will discloses an intention not to provide for the spouse.
- Homestead Rights — Florida law prohibits a married person from devising or gifting their homestead property if they are survived by their spouse or a minor child. However, if someone is survived by their spouse and has no minor children, they can leave their homestead to their spouse.
- Family Allowance — The surviving spouse and lineal heirs of a deceased Florida resident are entitled to receive a reasonable allowance from the estate for their maintenance while the estate is being administered, if the decedent (while alive) was supporting them or was obligated to support them. The maximum allowance amount is $18,000.
- Preference in Appointment in Intestate Estate — If you die without a will, your spouse has preference in appointment as the personal representative of your estate, which means they are the first choice for this position, if qualified.
Section 732.702 requires that any waiver of these rights is done by written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. Florida law also recognizes contracts, agreements, and waivers executed by nonresidents of Florida that are valid under the laws of the state or country where it was executed.
If the agreement, contract, or waiver is executed after marriage, each spouse is required to make a “fair disclosure” to the other of their estate. However, if the agreement, contract, or waiver is executed before the marriage begins, no such disclosure is required.
Can you contest a waiver of spousal rights?
Yes, a spouse can contest a legally deficient, fraudulent, or otherwise invalid waiver of spousal rights.
Under Florida law, for a waiver of spousal rights to be valid, there must be a written contract, agreement, or waiver. The document must also be signed in front of two witnesses, who must also sign the agreement. Additionally, both spouses are required to disclose their assets to each other before a waiver is executed if the agreement is entered into after marriage. If any of these requirements were not followed, a spouse could challenge the validity of the waiver.
Additionally, as with the majority of contracts, waivers of spousal rights made under duress or as the result of coercion are unenforceable. The spouse executing the waiver cannot be legally incompetent at the time it was signed. Spouses can therefore also contest a waiver if any of these situations apply.
How do you enforce a waiver of spousal rights?
Typically, a waiver will be documented in a written agreement between the two spouses, either before or during their marriage. This waiver would have to be filed with the probate court to enforce it.
Florida also has a “safe harbor” statute that allows spouses to waive their homestead rights by simply inserting specific language into a deed signed by both spouses before two subscribing witnesses. The required safe harbor language, which is found in Florida Statutes Section 732.7025, is as follows: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”
When should I contact a probate attorney?
If you would like to incorporate a waiver of spousal rights into your estate plan, you should contact a probate attorney before drawing up any waiver documents. If the waiver is not executed correctly or does not waive all of the required rights, it could be contested or fail to achieve its goals. Working with an experienced probate lawyer to create a comprehensive estate plan will ensure that your assets are distributed exactly how you want them to be. You should also contact an experienced probate attorney if you need to enforce or contest a waiver to spousal rights in an estate.
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