Prenuptial agreements are utilized by parties who for various reasons do not wish to be bound by existing Florida law should there be a divorce or death of a party to the marriage. In a divorce context, these agreements are tools to establish the expectation of the parties as to issues of property and spousal support. This article deals exclusively with the challenges confronted by the death of a party.
A Last Will & Testament identifies the beneficiaries of an individual’s estate after they have died. Regardless of whether a person has or has not created a Last Will & Testament, a surviving spouse has specific spousal rights. Spousal rights include the right to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative in an intestate estate.
Under Florida Statute §732.702, a spouse may waive any or all spousal rights, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. If the waiver is being signed after marriage, then fair disclosure of the spouse’s estate is required. A waiver of spousal rights may occur through a Prenuptial Agreement provided the execution of the Prenuptial Agreement complies with Florida Statue §732.702.
Prenuptial Agreements cover several topic areas, with the two pertinent to death being distribution of property and spousal rights. Unlike a Last Will & Testament, which can be changed by the drafting party at any time prior to death or incapacity, a valid Prenuptial Agreement becomes irrevocable upon execution. Thus, when a Prenuptial Agreement provides for specific bequests of property to the other party, the Prenuptial Agreement will supersede a Last Will & Testament containing contrary terms. This is true for Last Will & Testaments executed prior to or subsequent to the execution of the Prenuptial Agreement, unless a surviving spouse can prove that the Prenuptial Agreement was created under fraud, coercion or duress.
However, when a party waives their spousal rights due to death of a spouse, through a valid Prenuptial Agreement, the surviving spouse has no spousal rights against the estate of the deceased spouse, but if the deceased spouse, through their Last Will & Testament, explicitly gave one or more spousal rights to the surviving spouse, then the terms of the Last Will & Testament prevail.
When drafting a Prenuptial Agreement it is extremely important to avoid language that conflicts with a party’s estate planning documents. The best solution is for the attorney drafting the Prenuptial Agreement to work directly with the party’s estate planning attorney to ensure the cohesion of the documents and to create complete protection over a party’s property. Additionally, it is essential that estate planning attorneys ask to review Prenuptial Agreements previously executed by their clients prior to creating an estate plan.1
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