When Do You Need a Waiver of Spousal Rights in Florida Estate Planning?
In Florida, a surviving spouse is entitled to many rights in the property of their deceased spouse. The widow’s rights include, but are not limited to, the following:
- Homestead exempt property
- Elective share
- Intestate share
- Pretermitted share
- Family allowance
- Exempt Property allowance
- Primary preference to serve as personal representative in intestate estates
Under Section 732.702, Florida Statutes, a spouse can file a petition to waive their spousal rights. When would it be appropriate for spouses to waive their rights? Spousal waivers can be useful tools in estate planning when used properly.
When Do You Need to Waive Spousal Rights?
Not all individuals want to leave their entire estate to their spouse. Reasons for wanting to disinherit a spouse vary from one situation to another. Regardless of why you want to leave most or all of your assets to someone other than your spouse, you may consider seeking a waiver of spousal rights.
Under Florida intestacy law, a surviving spouse is usually entitled to 100% of the deceased spouse’s probate estate. However, if the deceased spouse had children from another relationship, then the surviving spouse is only entitled to 50%. Of course, if a Will is created, then the Will would pass to the beneficiaries named in the Will instead of Florida’s default intestacy laws. However, the only individual you cannot fully disinherit is your surviving spouse.
If you want to totally disinherit a spouse, waiving spousal rights may be the only option to bypass the protections provided under Florida law. These waivers can be all encompassing, or they can be more specific. For example, your spouse can sign and file amongst the public record that they waive their right to the Florida Homestead property. Another example is a surviving spouse can waive their right to the Florida spousal elective share, but maintain other protections provided under the law.
Regardless of what you want to do, it is strongly advised to consult with a skilled estate planning attorney to determine whether waiving your spousal rights would be the best option in your particular situation.
What Do You Need to Waive Spousal Rights in Florida?
While there is no “form” that needs to be used to waive your spousal rights in Florida, the waiver must meet certain requirements in order to be valid and enforceable.
The first requirement is that the waiver must be signed by the spouse seeking to waive their spousal rights in the presence of two witnesses. If the waiver of spousal rights or the spousal contract is executed after the date of the marriage, Florida law requires both spouses to disclose all of their assets to each other. There is no disclosure requirement for spouses seeking to waive their spousal rights before the marriage.