By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.
Blended families are becoming the norm these days and often times just before or after a second marriage occurs, the newlyweds want to craft their wills or trusts to provide for both their new spouse and their children from a previous relationship.
Q. What if I don’t have a Will?
A. If a person dies without a will in Florida it is known as dying Intestate. If a person dies Intestate and they have both a surviving spouse and children that are not children of their surviving spouse, Florida law provides that 50% of the assets subject to the Estate go to the children and the other 50% go to the surviving spouse.
Q. If I don’t like what would happen to my property if I die Intestate, can I change these percentages by creating a will?
A. Yes, any person over age 18 can make a will in Florida to determine which person(s) will administer their Estate and which person(s) will inherit their property when they die. However, this control over disposition of assets is somewhat limited as surviving spouses have many property rights and are entitled to some of their deceased spouse’s assets. The surviving spouse can often claim those assets (even if the will says otherwise) if they take action timely and they haven’t previously waived those rights by executing a valid waiver or marital agreement waiving those property rights. Below is a non-exhaustive list of rights and claims that a surviving spouse may be able to make on their deceased spouse’s Estate (even if the will says otherwise):
Homestead Rights: A surviving spouse is entitled to claim either a life estate or ½ the value of the homestead real property.
Exempt Personal Property: Certain items such as household furnishings up to a maximum of $20,000 and two (2) motor vehicles may be claimed from the Estate by the surviving spouse as exempt personal property.
Family Allowance: An allowance of up to $18,000 may be claimed from the Estate by the surviving spouse to pay for their maintenance during the Probate administration.
Elective Share: Upon death, the surviving spouse can decide to file for an Elective Share in the probate, which if timely filed would allow the surviving spouse to receive 30% of the deceased spouse’s Elective Estate. The Elective Estate includes more than just the assets subject to probate. The Elective Estate includes the following items:
- The Assets in your Probate Estate and assets subject to probate anywhere else in the United States;
- Assets in a Revocable Trust;
- Pensions and Retirement Plans;
- Joint Bank Accounts, Pay on Death Accounts, Totten Trusts;
- Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property);
- Certain irrevocable transfers;
- Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death);
- Transfers made within one year of decedent’s death;
- Irrevocable transfers to an Elective Share Trust; and
- Property passing directly to surviving spouse.
Q. What if I have an old will from before I got re-married and never updated my will after my new marriage?
A. If a person that already has a will gets married, and fails to create a new will after the new marriage, the surviving spouse is entitled to make a claim for the same share as if the person dies intestate (50% of the assets in the Probate Estate). This is known as being a Pretermitted Spouse and it only encompasses assets that are subject to Probate. In contrast, the Elective Estate includes many assets outside of probate. A surviving spouse must make a choice between 1) choosing to be treated as a Pretermitted Spouse or 2) filing a claim for their Elective Share but they cannot claim both. Usually, calculations of both are made and the surviving spouse would decide to claim whichever is higher in value. Homestead Rights, Exempt Personal Property, and Family Allowance are in addition to whichever option the surviving spouse chooses (between Pretermitted Spouse and Elective Share).
All of the above property rights must be timely claimed by the surviving spouse in a probate case upon the death of the spouse or else they may be considered time barred and thus lost. It is important to ensure your current estate plan has been crafted to account for the above referenced property rights or the property rights have been waived to the extent desired if you want your will or trust to be fully honored after your death.
Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to email@example.com.