Florida probate, elective shares, and second marriages

Wade Coye

Wade Coye, Accident & Injury Attorney

Sometimes after a loved one dies, there are disputes regarding discrepancies between the deceased person’s will, the law, and what the family believes would have been the intents or wishes of that person for their estate. If this has happened to you or your family, involving a lawyer can be one of the best ways to work through these discrepancies and create a solution for everyone.

Florida Constitutional law establishes spouses as the primary benefactors in the event of death. That means that even if someone has written a Last Will and Testament it is considered void by the marriage and gets overridden with the benefits entitled to the spouse in mind. The spouse who suffered the death of their significant other can claim life estate in property such as a home or land. They can also file for an elective share of communal property, and ask for a family allowance of the estate. Therefore, even if the person’s Will delegates certain property in a certain way – for example, leaving a family homestead to a child, or business assets to a business partner – the Constitution may override their Will and declare the spouse as the rightful inheritor.

This can be an especially tricky probate issue if the surviving spouse is the second or third spouse of person who has passed away. Children from previous marriages and other family members may feel that along with losing their loved one, they are also being considered unfairly in the distribution of the deceased person’s assets.

It can be very important to consider a prenuptial agreement prior to a second (or subsequent) marriage. Many people feel they don’t need to worry about estate planning, a Last Will and Testament, or otherwise protecting their assets until they reach a certain stage in life or have amassed a certain level of assets, but really it’s never too early to find out about the laws and paperwork that can help protect your family in a time of loss and tragedy.

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