According to the National Center for Health Statistics, there is one divorce for every two marriages since the year 2000. According to the Florida Supreme Court: “The institution of marriage has been a cornerstone of western civilization for thousands of years and is the most important type of contract ever formed.” Clearly, some people do not revere the institution of marriage as much as the courts do. Most attorneys encourage their clients to revisit their wills in the event of a subsequent marriage or divorce. This is not just because the attorney wants to make more money, but rather, because the law attaches independent significance to these events, which may or may not be consistent with your estate plans.
What if you die first?
Consider the typical married couple today. As soon as they get divorced, any provisions in their wills in favor of the divorced spouse become void by operation of law. As soon as they remarry, the law gives them the right to receive a share of their new spouse’s estate, in the absence of a valid marital settlement agreement to the contrary. Let’s say you and your wife have mutual wills that leave everything to each other and then to the children upon death of the surviving spouse. If you die first and your wife fails to protect the children by entering into a property settlement with her new husband, your children will have to share her estate with the second husband if she dies before he does.
What is the surviving spouse’s “elective share” of the “elective estate”?
It doesn’t matter if the second marriage lasts fifty years or fifty minutes. In the absence of a valid prenuptial or postnuptial agreement to the contrary, the surviving spouse will receive an “elective share” or a “pretermitted spouse’s share” of the estate. The surviving spouse of a person who dies domiciled in Florida is entitled to receive an amount equal to 30 percent of the fair market value of the “elective estate” after deducting all claims paid or payable from the “elective estate” and all mortgages, liens, or other security interests on property included in the “elective estate.” This is called the surviving spouse’s “elective share.”
What is the surviving spouse’s “pretermitted share” of the probate estate?
Similarly, when a person marries after making a will and the spouse survives the testator, the surviving spouse is entitled to receive a share of the probate estate as if the person had died intestate (i.e., had made no will), unless the will was made in contemplation of marriage or some provision was made for or waived by the surviving spouse by prenuptial or postnuptial agreement. This is called the “pretermitted spouse’s share.” Thus, if your wife fails to make a new will after she remarries, her second husband will be entitled to claim 50 percent of her probate estate, even if her old will left everything to your children. Furthermore, even if she makes a new will after she remarries, her second husband will be entitled to claim his “elective share” (i.e., 30 percent of her “elective estate”), against the will in the absence of a valid prenuptial or postnuptial agreement to the contrary.
You can protect your children by planning for the second marriage today!
Why would anyone choose 30 percent of the “elective estate” over 50 percent of the probate estate? Because the “elective estate” includes property that passes outside of probate including, but not limited to, the decedent’s ownership interest in POD accounts, joint tenancy property, trust accounts, the cash surrender value of life insurance policies, pension plans, retirement accounts, and even certain property transferred during the one-year period before death. Nowadays, most people have as much money invested in assets that will pass outside of the probate process, but the surviving spouse can count those assets in calculating his or her “elective share” of the “elective estate.” In summary, the law will protect your surviving spouse after you die. It’s up to you to protect your children by planning your estate before you enter into any new marriage contracts.
The author, Astrid de Parry, is a DeLand, Florida estate planning attorney.
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