A discussion of Floridas elective share law when your spouse passes away

Attorney Tom Olsen: I had a couple come see me last week, and they got married later in life. They're living in the wife's home. She owned it prior to them getting-- they only got married recently. They're living in the home that's titled in the wife's name only. She's owned it for a long, long time. She owned it coming into the marriage.

Once again, she's saying, "Tom, do a will for me that says that when I pass away, I want to give this home to my children." I got to tell her, "Look, under Florida law, you may want to do that, but by the very fact of being married, your husband is going to have certain rights to that home if he survives you in spite of what your will happens to say."

Attorney Chris Merrill: Exactly.

Tom: Those rights are?

Christie: That the husband could live there for his life, or if the husband wants to sell it, then he would get 50% and the children would get the other 50%.

Tom: I think that that's quite surprising for her to have heard this. Of course, her husband is saying, "Look, when she dies, I'm not going to claim any interest, and I don't want it. I know it's not going to be mine," but who knows what's really going to happen when that time comes?

Christie: By law, it is his right.

Tom: Yes. If she passes away, even if she's got a will in her name only, leaving it to her kids, her husband, if he survives her, could step in and say, "Look, I don't care what her will says. I want what I'm entitled to under Florida's elective share homestead law," and that would be he would have two choices. One of two choices. One choice would be to claim a life estate in the home, a right to live there for the rest of his life. With that comes the obligation to pay taxes, maintenance, insurance, mortgage, if there is one, or he could say no instead, I'm going to claim one-half interest in this home, and then I'll work with my wife's kids and we'll sell it, and I'll walk away with one-half the proceeds.

I think that's a bit surprising for people to hear that we're talking about Florida's elective share law. If you're in that situation, folks. If you're getting married later in life and you want to avoid that situation, the way to do it is through a prenuptial agreement.

Christie: Exactly. You're right, Tom. Many, many people do not know of that, and many people are in a second marriage, and now they're finding out from us.

Tom: Yes. In a prenuptial, when we're talking about Florida's elective share law, basically it covers two situations. One is the home, and two is everything else. We just talked about a home, and everything else is everything else, so savings, checking, savings, CDs, money markets, IRAs, life insurance. Your spouse has a right to at least 30% of those and so this wife that I'm doing a will for, she might have a will that says, I'm leaving everything to my kids, and yet, under Florida's elective share law, if she passes away first, her husband could say, "Wait a minute, I want my interest in her home, and I want 30% of everything else, checking, savings, CDs, IRAs, retirement accounts, and life insurance."

Folks, if that's not what you want and often we get married later in life and you both have children from previous marriages, we don't know who's going to pass away first. It serves both the husband and the wife to get this prenuptial agreement done, because by this prenuptial agreement, you're waiving the right to receive the elective share from each other's estate.

Christie: Exactly. You're right that it's important. Just like with your client now that she knows that, now, what is she doing?

Tom: She's going on faith. The husband says, "I don't want any of this," and we're going to go forward with her will, where she leaves everything to her kids. As you know, I make her sign a disclaimer that says, I told you about Florida's elective share law, and if you pass away first and your husband claims his interest in your estate, I don't want your kids coming and suing me and say, "Hey, Tom, you never told mom about this, why didn't you?" So I have her sign a form where she acknowledges that I told her about this elective share law, and she's going forward anyway.

[00:03:59] [END OF AUDIO]