Florida Law ensures that a surviving spouse of someone who died intestate (without a will) still receives or is entitled to a portion of the estate. But what happens if you marry someone who already has a will and for whatever reason failed to update it? Florida Statue 732.301 addresses this, calling a surviving spouse in this situation a Pretermitted Spouse. A pretermitted spouse will receive the same share of the estate that they would have received if the deceased spouse had died intestate, as defined in Florida Statues 733.805 and 732.102. None of this is applicable though, to a decedent who resides in a different state but owns property in Florida. In that case, the law of the state the decedent resided in will control the distribution of the property, unless the testator expressly chooses in the will that Florida law is to be applied. Saunders v. Saunders, 796 So.2d 1253 (Fla. 1st DCA 2001).
There are only three exceptions where this is not the case:
1. If provision has been made for or waived by the surviving spouse in a prenuptial or postnuptial agreement.
2. If the surviving spouse is provided for in the will that was drafted before the marriage.
3. If the will drafted before the marriage specifically discloses an intention for no provision to be made for the surviving spouse.
The case of Ganier’s Estate v. Ganier’s Estate, determines that the primary purpose of the pretermitted spouse rule is to ensure that the decedent spouse considered the surviving spouse as a spouse when making their will. Ganier’s Estate v. Ganier’s Estate, 418 So.2d 256 (Fla. 1982). If two people are married, with wills making provision for each other, the provisions of that will as regards the surviving spouse are voided if the parties divorce and subsequently remarry, and the surviving spouse will be considered a pretermitted spouse. Bauer v. Reese, 161 So.2d 678 (Fla. 1st DCA 1964). The case of In re Steinert’s Estate, states that a named beneficiary in a will made before the marriage does not constitute “provided for in the will” as regards being a spouse, and the surviving spouse will be permitted to take from the estate as a pretermitted spouse. In re Steinert’s Estate, 137 So.2d 856 (Fla 2d DCA 1962). However, the surviving spouse has the burden of proof to establish that a provision for them in a pre-marriage will does not meet the statutory definition of being provided for in the will as a spouse. In re Livingston’s Estate, 172 So.2d 619 (Fla. 2d DCA 1965). In short, if a surviving spouse is not mentioned in a will drafted before the marriage, they still have an interest in the estate. It would certainly be easier though, to make sure you update your will after you get married!
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-Charles Adams, Esq.
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
