Husband made a will before marriage. Can the spouse claim her elective share?
Full Question:
My husband died in a road accident. I never knew he had made a will before he married me. After his death, my husband’s brother told me that my husband has left behind a will. The will for obvious reasons has no clause for me nor does it have any provision for future spouse. However, my friend told me that I could still claim my elective share in my husband’s will. Is it true?
02/09/2017 |
Category: Wills and Es... » Elective Sha... |
State: Florida |
#31846
Answer:
When the will has a provision which clearly states a waiver for or by the spouse by prenuptial or postnuptial agreement,
If there is already a provision in the will that provides for the share of the testators spouse,
If the will represents an intention of the testator of not making any provision for the spouse.The relevant statutory provision in this regard is stated below.
Fla. Stat. § 732.301
Pretermitted spouse.
When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.
The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.
Fla. Stat. § 732.201
Right to elective share.
The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share. The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.