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Dealing with a Parent’s 2nd or 3rd Spouse

Dealing with a Parent’s 2nd or 3rd Spouse in Florida Guardianships

Second and third marriages have become commonplace in our society, and this is especially true in Florida. When a parent dies without providing for that last spouse in their will, this can puts the decedent’s adult children at odds with their parent’s second or third spouse. Why? Because spouses, or widows, in Florida get a guaranteed inheritance unless they waived their right to an inheritance voluntarily and knowingly, such as whey they might sign a Florida prenuptial agreement. Not only has prenuptial agreement litigation exploded in Florida, but so has probate lawsuits between and among adult children and their step-mother or step-father.

Adult children of a decedent are often surprised to learn that despite a last will and testament, executed prior to a parent’s final marriage (and thus not mentioning a future spouse), a surviving spouse of a decedent still has rights under Florida law— despite not being named a beneficiary in the decedent’s will. This is what is known in Florida probate litigation lawsuits as a pretermitted spouse. Yes, even if you , a spouse, are NOT named in a Florida will, or, perhaps “worse”, if you are a spouse and you are specifically dis-inherited in a Florida will, you still can inherit. Spouses, wives, husbands, and widows have very valuable property & inheritance rights in Florida probate. And there is no ceiling or dollar limit. So, you could inherit millions and millions of dollars if you survive your spouse.

Not everyone is aware, especially those who move to Florida from out-of-state, of Florida’s elective share, homestead and family allowance under Florida estate law. Unless waived pursuant to a valid prenuptial or postnuptial agreement, the surviving spouse of a decedent is entitled to take both elective share and a life estate in Homestead real property of the decedent. A surviving spouse can also petition for family allowance. This can be frustrating for adult children who may view the new, or last, spouse as a “stranger” to the family, or a “gold-digger.” Adult children often hire probate or estate litigation law firms in Florida to explore the inheritance rights of adult children to their parent’s estates. This can pit the adult children against mom or dad’s last spouse. As you might imagine, adult children might get angry that a spouse or 3rd or 4th husband or wife might inherit from “their” Florida family trust or estate, even if the spouse was only married to their parent for days or weeks, or months. You see, in Florida estate law, there is no requirement that a spouse inherit only if they were married for a minimum amount of time.

How much is a widow guaranteed to inherit under Florida probate laws? Florida’s Elective share is an amount equal to thirty percent (30%) of the elective estate. F.S. § 732.2065. The decedent’s Florida elective estate is defined by Florida Statute § 732.2035, and includes items which normally would pass outside of a typical probate estate.

A surviving spouse, pursuant to Article X, Section 4(c) of the Florida Constitution is entitled to no less than a life estate in any property used as homestead by their deceased spouse in Florida. In lieu of a life estate, the surviving spouse has six months from the date of death to make an election whereby he or she may elect to take an undivided one-half interest in the property as a tenant in common. Such an election is important; as a tenant in common, one can file an action for partition, thus forcing the sale of the real property in order to obtain a pro rata share of the value of the real property. In other words, if the home is homestead and the owner dies, the spouse or widow can live in it or at least sell it and get half. That can be very, very valuable. This can also be shocking to adult children who were hoping to inherit the Florida estate, ranch, or beach condo. Let’s face it: very few widows who are the last spouse of a deceased Florida resident, wants to co-own real estate with step-children. Florida estate lawyers will tell you that that can be a probate recipe for disaster.

Problems can arise when adult children of the decedent believe the terms of their parent’s last will and testament will control, when a pretermitted spouse survives their parent, or their parent has attempted to simply exclude their surviving spouse from their estate planning. In this regard they did not contemplate the ability of a surviving spouse to file both elective share and for family allowance. So, if you are a widow, here is your lesson: you have very valuable property rights if you are an omitted spouse under the Florida will or if you are dis-inherited. Don’t believe all that you read. Ask a Florida estate attorney about your inheritance rights as a spouse or widow.

Under Florida law, family allowance is set forth in F.S. § 732.403. If a decedent was domiciled in Florida at the time of death, the surviving spouse and lineal hears that the decedent was supporting or was obligated to support are entitled to a reasonable allowance from the estate for maintenance during administration. The allowance shall not exceed a total of $18,000. The surviving spouse (and qualified lineal descendant(s)) are entitled to a family allowance out of the estate without regard to the necessity of the allowance; however, the reasonableness of same must be established. Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005).

In the event of a parent who dies survived by a second, third or subsequent spouse, without a will providing for the surviving spouse, then the administration of the estate could be complicated. Unexpected litigation issues may arise. Should you have questions, it may be advantageous to consult an experienced probate litigation attorney regarding your rights and remedies at law.

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