Prenuptial Agreements and Estates: why Florida makes the surviving spouse a “creditor”

What do you do when someone who signed a prenupt dies?  Florida probate and estate and trust attorneys are very familiar with prenuptial agreements, postnuptial agreements and cohabitation agreements.  Florida divorce attorneys are also familiar with marital settlement agreements, which divide property and assign rights upon a divorce.  Lawyers in Palm Beach Couty, and Broward County and Miami-Dade County for that matter, prepare marital agreements often. They draft them in part because there are so many second and third marriages in Florida.  But enforcing them is another issue.  What do you do?  In Florida, probate attorneys know that a party to a prenup has rights. For example, the prenup may say that the deceased spouse shall leave (to the surviving spouse) the residence that they lived in, or perhaps some money, or a trust, or a life estate to certain property.   To enforce those rights after the other party passes away requires the surviving spouse to file a statement of claim in the estate proceeding or probate administration of the deceased spouse.  In Palm Beach County, like Broward and Miami-Dade, that occurs in the probate division of the judicial circuit.   Yes, Florida estate law and Florida probate law treats a surviving spouse who has rights pursuant to a marital agreement, like a prenup, as a creditor.  You must file a statement of claim to enforce your rights.   If there is no estate opened, you need to open one.  If you don’t file your claim timely, or fail to open an estate timely, you will be forever barred from enforcing your rights.   In the world of Florida estate administration, statutes of limitations are very, very short.   One word of caution to the surviving spouses:  the attorney for the estate or the Florida personal representative or executor does not represent you.   That attorney reps the Florida personal representative.  Obtain your own attorney:  get a Florida attorney who is knowledgeable about rights of surviving spouses and who practices in the Florida probate arena.  Get a Florida lawyer who handles Florida estate disputes, one who can provide you with independent and objective advice and legal representation.  Get a Florida lawyer whose duty of loyalty is owed to you, and only you.  Advocate hard.  Litigate smart.