Rights of Spouse – Not Always What You’d Expect
By Steve W. Ledbetter, ESQ.
In the context of Estate Planning, marriage can add many elements of complexity. In fact, in our law practice it is quite common to get to educate new clients on how their recent nuptials may add multiple levels of complexity to their estate plan.
Rights of Spouses in the Estates of Decedents. While a short article like this is not the appropriate forum for an in depth look at any legal subject, there are 3 “rights” we typically talk about with clients: (1) Homestead, (2) Elective Share, (3) Tangible Personal Property.
Homestead is a concept created by our Florida Constitution. While many think merely about the homestead property tax exemption created by Florida statutes, our constitution has restraints on alienation – in short, if you are married or have minor children at the time of your death, even if you direct otherwise, your homestead real property goes to your surviving spouse and minor children (in one form or another, the details of which are best suited for a more detailed conversation).
Elective Share is a statutory right of a surviving spouse to “elect” to take a 30% interest in the assets of the decedent, regardless of what the decedent’s Will or Trust provides. Effectively this serves as a minimum, although there are specific types of Trust clauses we can implement to minimize the effects of Elective Share.
- Tangible Personal Property is your “stuff” – your car, boat, jewelry, golf clubs, art, rocking chair, baseball card collection, etc. It even includes your pets. A surviving spouse is entitled to the first $20,000.00 worth of tangible personal property plus a car.
As a final note, the foregoing applies to estates when the decedent did update their estate plan after their marriage. If the decedent failed to update their estate plan after marriage, then a surviving spouse is entitled to a “pretermitted share” of one-half.
How to avoid these issues? Go ahead and get married, but first consider the benefits of a prenuptial agreement. While many people associate such legal agreements with planning for divorce, they are extremely important in the context of estate planning too. With a simple waiver of the foregoing rights, you may make whatever plans, gifts, and bequests you desire.
Regardless, we are often able to provide counsel on how best to avoid the pitfalls and unexpected effects of the application of these laws to our clients, but only if they plan ahead.