WAIVER OF SPOUSAL RIGHTS UNDER FLORIDA PROBATE LAW
Florida probate law contains numerous protections for a surviving spouse. These interests include what is referred to as an Elective Share (a minimum entitlement to the Estate by law), preference of appointment in intestate proceedings, and rights to elect either a ½ interest in homestead property or maintain a life estate. Further, as discussed in earlier posts, Florida law does not allow a spouse to devise a homestead property to anyone other than a spouse if the decedent was survived by a spouse and/or minor children.
These protections can be waived. A spouse can waive the right to elective share, homestead or pretermitted share prior to or after marriage. The authority to make this waiver comes from Fla. Stat. 732.702 which provides:
(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law. Any contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death. Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.
(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.
The document is only required to be executed in the presence of two subscribing witnesses. As a practical concern, our office recommends also having the document notarized although not necessary to simply add an additional layer of authority as to the execution.
Another important note on the waivers is that if they are done after marriage they require full and complete financial disclosure to be valid. If done prior to marriage Florida law does not require a financial disclosure. In fairness to the spouse who is waiving entitlement you must provide a full and accurate picture of all your assets. The assets do not need to be described in the waiver but the disclosures must be made. The failure to make a full and complete disclosure will allow the document to be potentially attacked after the death of the spouse by the survivor. The use of third parties to identify the nature and extent of the disclosures at the time made can be instrumental to preserve the validity of the waiver subsequent to the death of one spouse. This can be accomplished via independent affidavits from your estate planning attorney and/or accountant to establish the nature and extent of the disclosures made at the time of execution.
Finally subparagraph three (3) above notes that no “consideration” be given to secure the validity of the waiver, contract, agreement etc.. that contains the waiving of these rights. Consideration is a contract requirement that requires a trading of mutual obligations for the creation of a binding agreement. For example, in exchange for $100 I will paint your fence is sufficient consideration to bind parties to a contract as each side gives and mutual obligation (payment and work). The waivers of the spousal interests under this section as outlined above require no consideration to be valid per Florida law. In other words, the spouse giving up his or her rights need not receive anything of value in return for the waiver to be valid and enforceable.
If you are considering the modifications outlined here whether pre or post marriage give our office a call for a no obligation free consultation to discuss Florida’s evolving laws regarding the waiver of spousal interests in estate planning and litigation.