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In Florida, Your Mom is Entitled to a Share of Her Second Husband’s Estate

Published: November 2nd, 2012

Robert J. Naberhaus III David P. Hathaway

In Florida, Your Mom Is Entitled to a Share of Her Second Husband’s Estate – No matter what other beneficiaries might say

by David P. Hathaway, Esq. and Robert J. Naberhaus III, Esq.

Your mother lives in Florida and remarried there after your father died. Her second husband, who also was married previously, has passed away, and left his entire estate to the son and daughter from his first marriage. Your mom has called you with a problem. Although it wasn’t in the will, she says that under a Florida law provision called elective share, she is entitled to part of her late husband’s estate. Yet the two children are contesting the elective share in court. Your mom is distressed – she doesn’t want to cause problems, but doesn’t want to give up something she’s entitled to … and isn’t sure now if she is entitled or not.

The fact is that your mom has every reason to claim her elective share of her second husband’s estate. That right is established by Florida Statute section 732.2065, and is equal to 30 percent of the total estate value, not limited to the probate assets. It is a statutory right, not a financial decision, and except in rare instances (for example, if an elective share adds income sufficient to disqualify a person from receiving Medicaid) it is always worth taking. Strong public policy reasons, which protect surviving spouses like your mom, encourage her to do so.

There are only four reasons why filing an elective share notice would be declared invalid:

•  The notice was not filed timely. Florida Statute section 732.2135 says that notice of elective share must be filed within the earlier of two deadlines: six months after notice that the court appointed an administrator for the estate (which must come from a personal representative of the administrator after appointment), or two years after the death of the decedent.

•  The surviving spouse had signed a waiver or agreed to a pre- or post-nuptial agreement giving up the elective share claim, as provided in Florida Statute section 732.702

•  The surviving spouse had secured the marriage by deceit, fraud or duress.

•  The surviving spouse had unlawfully killed the decedent.

Because your mom had a Florida lawyer who understands the elective share statute and filed her notice on time, and because the other three invalidations don’t apply to her, she is entitled to receive her elective share. Don’t be concerned that the two children who are contesting the filing will claim that your mom wasn’t competent. Yes, she has her good days and bad days, but lack of mental capacity does not invalidate an elective share decision. In Florida, if incompetency is not established by power of law; an individual is assumed competent. And even in instances of incompetency, Florida Statute section 732.2125(2) and Florida Probate Rule 5.360(a)(2) allow a surviving spouse’s attorney-in-fact to exercise the elective share right on the spouse’s behalf.

And you also shouldn’t worry that encouraging your mom to stand up for her rights will lead the other children to claim that you, as your mom’s heir, are pushing her by exercising “undue influence” – in other words, exerted your will completely over her – to make the filing, on the assumption that you will eventually inherit the share. Courts do not take such a future interest into account and in one Florida case, Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986), the court upheld the elective share right of a surviving spouse even though the spouse died before receiving it and the beneficiaries of his estate would receive the share.

Your mom’s decision to seek her elective share of her late second husband’s estate simply should not be a problem. Florida Probate Rule 5.025 establishes that filing for an elective share should not be an adversary proceeding – it is a right under law. Of course, once the right to an elective share is established and the will is probated, there can be probate court proceedings involving the heirs to establish the value of your mom’s share as well as the value of anything else in the estate. But establishing value is an accepted part of the probate process, just as receiving an elective share is an established part of the administrative process for a will. And that’s an issue for another day. For now, reassure your mom that she’s doing the right thing – and thank her for having the foresight to get help from a Florida lawyer who understands the elective share statute.