Pretermitted spouses

Question 1

Pretermitted spouse

Answer 1

a spouse that was married to the testator after testator made a will, and the testator did not provide for the spouse in the will

Question 2

How does divorce or annulment affect a will?

Answer 2

Dissolution or annulment of a marriage voids only provisions affecting the former spouse

The testator (or the judgment dissolving the marriage) can provide different rules regarding the former spouse

The will and trust statutes void provisions to former spouses upon divorce, as well as joint bank accounts and life insurance policies.

Question 3

When a T marries after making a will, § 732.301 allows the surviving spouse to claim the equivalent of an intestate share of the T’s probate property unless one of three exceptions exists: (will be on test)

Answer 3

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

Question 4

What does a pretermitted spouse receive?

Answer 4

A pretermitted spouse receives the share of decedent’s probate estate that he or she would have received if the decedent had died intestate

The pretermitted share statute applies to property owned by Florida residents

Question 5

Attesting witness

Answer 5

means the same as subscribing witness

Question 6

Pretermitted child

Answer 6

§ 732.302 allows a surviving child who was omitted from the T’s will to claim an amount equal to an intestate share of the T’s probate property

Question 7

To be eligible to claim his pretermitted share, the omitted child must:

Answer 7

1. Must have been born or adopted after the will was executed
2. Must not have received the child’s share as an advancement
3. Cannot benefit if it appears from the will that the omission was intentional
4. Must not be among other surviving children and spouse

Question 8

How is a will administered upon divorce or annulment?

Answer 8

§ 732.507(2) states that the will is administered as if the spouse died when the divorce, dissolution, or annulment occurred

The will provisions benefitting the former spouse become void

Question 9

What are the exceptions for administering a will as if the spouse died in cases of divorce?

Answer 9

1. If the T’s will contains a provision indicating that the devise is to be valid notwithstanding divorce; or
2. If the dissolution or divorce language contains such a provision

Question 10

What if the couple remarries?

Answer 10

Remarriage does not revalidate the provisions that were voided by the divorce