I wish I could force every man and woman who gets married (usually a second marriage) after setting up an estate plan to read the answer to this question. This situation arises from a variety of circumstances. First, we have the scenario where a man and a woman move to Florida from another state. The estate plan was fine in their other state, but now they are in Florida and the Florida Statutes change their estate plan in ways they never imagined. Then there is the scenario where the husband and wife are happily married for many years. The husband (obviously this can happen either way, but men have a shorter life expectancy) dies and the surviving wife goes to see a lawyer and changes her estate plan. Then, she meets a nice gentleman and gets married. The new husband tells her (mom) over and over again that he does not want her money.
She thinks she is fine because her estate plan does not give him her money anyway. Then she dies and the children are in for quite a surprise. First, the surviving second spouse was married after the will was signed and is not mentioned in the will. Thus, he is considered a pretermitted spouse and he is entitled to a share equal to one-half of the probate estate. But wait, that is not all. He is also entitled to a life estate in the decedent’s homestead property. But wait there is more fun in store. The decedent's will gave her homestead to her son because of previous gifts to her daughter. Now because of Florida Statute 732.401, the remainder interest in the homestead property vests in all mom's descendants at the time of the her death. This means the daughter gets a vested remainder of one-half of the house that was supposed to be devised only to the son. Further, now son and daughter are fighting about everything. The daughter tells her brother that it is not her fault that Florida law changed mom's estate plan, and the son wants her sister to "do the right thing."
Hold on there is more. That car that mom promised to her son is now going the surviving spouse along with the other car that mom used from time to time. In addition, the second spouse also gets up to $20,000.00 of tangible personal property within the house. Finally, if that is not enough, that surviving spouse who did not want any of mom’s money can receive a family allowance during the probate of up to $18,000.00. To avoid this heart breaking mess, contact the Cody & Linde, PLLC today for more information.