What Is A Waiver Of Spousal Rights?

In Florida, when a married individual passes away, their spouse automatically has certain rights. While these rights are intended to protect spouses of a decedent, there are also times when those rights may be waived. Below, our St. Petersburg estate planning attorney outlines the basic rights of spouses in Florida, and what is required to waive them.

What Rights Does a Surviving Spouse Have? 

Surviving spouses have many rights in Florida. These include:

• Elective share: Spouses cannot disinherit their partner due to the elective share. Spouses have the right to an elective share of 30 percent to their partner’s estate if they pass away.
• Intestate share: When a person passes away without a will, their spouse has the right to a 100 percent share of the estate, if there are no children outside of the marriage. If the deceased spouse had children outside of the marriage, they are entitled to 50 percent and the surviving spouse receives the remaining 50 percent.
• Pretermitted share: If a spouse drafted a will before they got married and did not draft a new one before they passed away, the surviving spouse retains the right to the intestate share.
• Homestead: Surviving spouses have the right to choose a life estate interest or a 50 percent interest in the homestead property.
• Family allowance: When surviving spouses or children were financially dependent on the deceased, they have the right to use a reasonable allowance taken from the estate.
• Preference of appointment: Surviving spouses are given the preference of acting as the personal representative if their partner passes away without a will.

Why Would a Spouse Waive Their Rights in Florida? 

Not everyone wants to leave their entire estate to their spouse and likewise, not all spouses want to receive their partner’s estate upon their death. For example, if the spouses have children together, both partners may want those children to automatically receive all or a portion of the estate. In these cases, and in others when Florida law does not align with a couple’s wishes, one spouse may agree to waive all or some of their rights.

For one spouse to waive their rights, both parties must enter into a written agreement, known as the waiver, and they both must sign it. The spouse who is waiving their rights must sign the agreement in the presence of two witnesses. If this agreement is entered into after the marriage, each spouse must also provide a full and fair disclosure of their assets to the other. This requirement does not apply if the agreement is entered into before the marriage.

Our Estate Planning Attorney in St. Petersburg Can Draft Your Agreement 

While it is never recommended that you use one-size-fits-all templates, this is particularly important when it comes to spousal waivers. At Legacy Protection Lawyers, LLP, our St. Petersburg estate planning attorneys can advise you of the rights you are waiving and draft your agreement so it meets the requirements and is enforceable. Call us now at 727-471-5868 or contact us online to schedule a consultation and to get the legal advice you need.

Source:

casetext.com/statute/florida-statutes/title-xlii-estates-and-trusts/chapter-732-probate-code-intestate-succession-and-wills/part-vii-contractual-arrangements-relating-to-death/section-732702-waiver-of-spousal-rights/analysis?citingPage=1&sort=relevance