Among probate lawyers, Florida is affectionately known as “probate heaven.” This is due to the large number of retirees in Florida and to Florida’s complex and sometimes burdensome probate laws. For the clients of those lawyers, however, the probate process brings to mind a different biblical destination. Most probates could be easily resolved or altogether avoided through proper estate planning.
In cases of a second marriage, it is crucial that pre-marriage estate planning is done. Let’s say you have a will that leaves everything to your children. If you do not update your will before you die, your spouse will be considered a “pretermitted spouse” under Florida probate law. This provision permits a spouse who was not mentioned in the will to claim 50% of the decedent’s estate, under the theory that the deceased spouse simply forgot to change his or her will to leave something to the new spouse and, if he or she had done so, the new spouse would have been left 50% of the estate. And even if you do update your will after marriage, the “elective share” law still gives your spouse the right to claim 30% of your estate, regardless of what your will says.
In second marriages, the simplest solution is to execute a prenuptial agreement (a “prenup”) that spells out exactly what each spouse will receive from the other’s estate. This allows you to determine who will be the beneficiaries of your estate, rather than having it decided under arcane probate rules that may or may not make sense for your situation. A word of caution–negotiating a prenup is much like going through a divorce even before you get married. Each of you must have your own attorney for the agreement to be enforceable, and we all know how difficult dealing with attorneys can be! Prenups are not to be entered into lightly, but in the right situations they can make perfect sense for both parties.
If you would like to discuss a prenuptial agreement, or discuss other estate planning issues, we stand ready to help.