Florida's Elective Share law and Prenuptial Agreements

Ed: I set up, I guess a 401(k), I wish I could say I know which kind it is, but I set that up when I was divorced. Then, I got remarried and I just left my kids as the beneficiaries. I'd like to keep that particular account that way, is there any problem with that? I mean, if I die? All in the context of if I die.

Attorney Tom Olsen: Did you have any prenuptial agreement done, when you got married?

Ed: No.

Attorney Tom Olsen: Ed, you need to understand that here in the state of Florida, by the very fact of being married, you each have an elective share to receive 30% of each other's estate. Depending on how that 30% shakes out, you may have your kids as the sole beneficiary of that 401(k). You pass away, Ed and your wife might say, "Hey, wait a minute. I'm entitled to 30% of everything that Ed owned. I don't care what his beneficiary said, I may be entitled to 30% of that 401(k)."

Ed: Yes. That's fine. My kids would get 70%, she would get 30%.

Attorney Tom Olsen: If she claims her elective share and it shakes out that way, yes.

Ed: Yes. Right, but I can be rest assured that they're going to at least get 70%?

Attorney Tom Olsen: In my opinion, the answer is yes, Ed.

Ed: Okay. Oh, great. Thanks so much.

Attorney Tom Olsen: All right. You're very welcome, Ed.

Ed: Okay. Bye.

Attorney Tom Olsen: The elective share here in the state of Florida, says that the very fact of being married, your spouse is entitled to at least 30% of your estate. There's a lot of nuance to that. It's more than what it just sounds like on its face. The bottom line is that if you're getting married later in life, you've got children from a previous marriage, she's got children from a previous marriage, you want to leave your wealth to your children, she wants to leave her wealth to her children, the best way to accomplish that, folks, is to get a prenuptial agreement. In that prenuptial agreement, you're waiving the right to receive 30% of each other's estate and that way, your estate plan can come true.

Think about getting a prenuptial agreement under the circumstances. Remember that prenuptial, the attorney can only represent one of the parties, he or she cannot represent both of you, and two, get that prenuptial agreement signed well in advance of your marriage ceremony. Do not go to your spouse and future spouse and say, "Hey, honey, we'll get married next week. Let's do a prenuptial agreement this week." Get it done way ahead of time, folks. That's just some good planning.