Maybe the last few years of your marriage were not ideal and your spouse disinherits you, in other words they eliminate you from their will. Do you have any rights in this situation? In Florida a spouse has a right to an inheritance known as an elective share if they wish to forfeit their inheritance under the will. In Florida you can waive your right to an elective share. A case handed down this week from Broward County shows that the question of whetherelective share was waived depends on which will is considered the valid last will and testament.
- Bernard Baval (“Testator”) died on October 29, 2010.
- His Daughter was named personal representative of his estate.
- Seeking clarification of the correct will to admit to probate, Daughter submitted two wills signed by Testator: one from 1982 (“1982 Will”) and one from 2007 (“2007 Will”).
- The 1982 Will contained Wife’s waiver of her right to an elective share.
- Under the 2007 Will, which revoked all previous wills and did not contain a waiver of Wife’s right to an elective share, Daughter was afforded discretion to give Wife $150,000 from Testator’s estate.
- Before any will was admitted to probate, Wife filed a petition to take her elective share under Testator’s estate and filed a motion for summary judgment on her entitlement to an elective share. Daughter responded to Wife’s motion and argued that the 2007 Will was invalid.
- To support this assertion, she attached the affidavit of a witness which alleged a material flaw in the will that would invalidate it.
- Following a hearing, the trial court granted Wife’s motion
- It also found that the waiver attached to the 1982 Will applied to only that will and not to any subsequent will.
- The Daughter appealed and the trial court was reversed on appeal.
- The Will was invalid and the original Will was valid and thus the Wife had waived her right to elective share.
What does all this mean for you when you are litigating a probate in Palm Beach?
- Old Wills can be a nuisance, make sure they are destroyed and no one can have access to a photocopy if you truly do not want it to be used by a court.
- Every Will has to be Valid. Florida has a strict set of rules on what validates a will (in short you will need two witnesses and a notary who all sign in each other’ presence). There are some loopholes like if your will is valid under another state’s laws. This is not a fail safe though as certain wills are per se invalid such as oral wills.
- Elective Share Can be Waived. I am not sure why the wife in this case waived her right to elective share. It can be done, and you should be cautious of these clauses in your spouses wills.
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