Must you include your spouse in your will under Florida's elective share law?

Attorney Tom Olsen: I'm going to talk about another situation where we make the client sign what we call a disclaimer, and you'll be using that. That is that here in Florida, by the very fact of being married under Florida's Elective Share Law, you are obligated to leave a portion of your estate to your spouse.

Attorney Holley Knapik: Yes, you are.

Tom: Married couples who've been married forever, not an issue, but when people get married later in life and he's got children from a previous marriage and she's got children from a previous marriage, and they come to us and say, "Tom, we have intentionally kept our assets separate." Husband comes to me and says, "Tom, write a will for me that says when I die all of my assets go to my kids. My new wife agrees to that." I say, "Do you have a prenuptial agreement?" "No." I tell him about Elective Share letter that if I write a will for you and you pass away, your wife could step in and say, "I don't care what his will says, I want what I'm entitled to under Florida's Elective Share Law."

Holley: Absolutely.

Tom: Standard procedure, for the longest time, we make the client sign a form that says, you acknowledge that if you pass away with a will like this, your wife can step in and say, "I don't care what your will says. I want what I'm entitled to." Sign that form, we keep it with their will, we scan it for our files.

Holley: We do.

Tom: Now, why did I start that many, many, many, many years ago? Because there was a lawsuit where a lawyer did a will just like that for father, the father passed away, the wife demanded her elective sharing. Let's call it 30% of the father's estate. The kids sued the lawyer who prepared the father's will and says, "You should have told my father that," and they were successful.

Holley: They were successful. Yes.

Tom: That's why we do it and why it's so important.

Holley: Absolutely. Because there again, here is the law, but if you want me to go against what-

Speaker 3: One minute.

Holley: -she has the right to do, or he has the right to do, we're going to make sure that you're well aware on your side and that you're well aware.

Tom: I want to say one more thing before we took a break. Recently within the last month, I had a situation like that. Father passed away. Kids are coming to me to do father's probate. I'm breaking the news to him that wife gets 30%. They said, "Tom, we need to talk to you on the phone. All the kids want to do a phone consult with you." I know where they're going with this. Before that phone consult, I emailed them a copy of that disclaimer.

[00:02:24] [END OF AUDIO]