Experienced Palm Beach probate lawyers know that in Florida it is practically impossible to disinherit a spouse absent a prenuptial / antenuptial agreement. Do you know why? Do you know about your rights to an elective share of your spouse’s estate? In Florida a spouse is entitled to 30% of the estate and this can include some trust property too, see how.Check out this interesting case out of the Connecticut Supreme Court.
Florida’s Elective Share Statute
- Do you know what an elective share is?
- In Florida you do not have to simply accept what a spouse leaves for you in the will.
- You may if you choose, elect a share allotted by statute.
- Do you know how much you are entitled to?
- In Florida the answer is 30%.
- Until about a decade ago the elective share statute’s percentage was calculated based on the probate estate.
- This means that you were able to practically disinherit a spouse by eliminating most of the probate estate.
- Do you see how?
- Courts have more trouble than you might think calculating the elective share and rules differ from jurisdiction to jurisdiction.
- Do you know the rules in West Palm Beach?
How to Defeat the Elective Share Statute
- At this point in Florida in order to defeat the elective share statutes Florida requires the party to waive that right, in writing.
- Usually this means in a prenuptial agreement.
Dinan v. Patten
- The Supreme Court of Connecticut is the highest court in the State and hears all types of appeals including probate.
- In this interesting case the administrator (think personal representative) of a husband’s estate moved the court to direct him on how to determine the amount of the wife’s elective share or statutory share as it is called there.
- The Probate Court in Fairfield entered judgment concluding that the statutory share would be valued at the time that the final account was presented.
- The wife appealed that decision as it limited her recovery under the statute.
- The appeals court reversed the trial court and then the case got to the Supreme Court for the State.
- In the end it was held that the wife did not waive her right to a statutory share by first challenging the will, that estate taxes do not constitute charges against the estate to calculate the share and that the value of the wife’s statutory share was to be calculatedbased on the value of the estate at the time of distribution rather than at the time of death.
- This allowed her to collect any appreciation that had occurred in the meantime.
Do you agree with the result?
Want to learn more?
Check out the entire case by clicking here.