A pretermitted spouse is a spouse who marries the decedent after the decedent has executed their will and is not provided for in that will. Florida Statutes §732.301 protects pretermitted spouses by granting them the right to inherit as if the decedent had died intestate (without a will).
However, this right does not apply in the following situations:
- The will makes provisions for the spouse.
- The spouse waived their rights through a valid prenuptial or postnuptial agreement.
- The will explicitly states an intention not to provide for the spouse.
Timing for Asserting Pretermitted Spouse Rights
While the statute does not specify an exact deadline, pretermitted spouse rights must be asserted during the probate process. Generally, these claims should be made as soon as possible after the decedent’s death. It is crucial to file the claim:
- During the administration of the estate.
- Before the estate assets are distributed to ensure the claim can be honored.
Consequences of Failing to Assert Rights
If a pretermitted spouse does not assert their rights in a timely manner, they may forfeit their entitlement to an intestate share. Courts in Florida have consistently ruled that pretermitted spouse rights are personal to the surviving spouse and must be claimed during their lifetime. If the surviving spouse fails to act, the rights cannot be claimed posthumously by the spouse’s heirs or estate.
Steps for Pretermitted Spouses
- Seek Legal Advice Early: It is important to work with an experienced probate attorney to assess your rights and take appropriate action.
- File a Petition: Formally assert your claim to an intestate share by filing a petition in the probate court handling the decedent’s estate.
Pretermitted spouse rights are an important protection under Florida law, but they require timely action to preserve them. Acting quickly ensures your rights are fully recognized during the probate process.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.