A pretermitted spouse is a husband or wife that was left out of a will by their significant other because the will was created prior to the marriage, and the spouse who wrote the will forgot to update the will prior to their death.
What are the remedies available to the pretermitted spouse?
Under the Florida Statutes, when a person marries after making a will and the spouse survives the “testator” (the spouse who wrote the will), the surviving spouse will receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, in other words, had the testator died without a will in place at all.
The Florida Statutes make two exceptions to this remedy available to a pretermitted spouse: (1) the first is if the spouse is provided for in the will, or contemplated in the will, regardless of the will having been created prior to the legal marriage, and (2) if the will specifically includes a provision disclosing an intention not to leave anything for the spouse.
What is the difference between an elective share and a pretermitted spouse share?
If you fall under the category of a pretermitted spouse, you likely also have the option of taking an elective share from your deceased spouse’s estate. An elective share is the portion of the decedent’s estate that the surviving spouse is entitled to take regardless of the provisions of the decedent’s will. Thus, if you are a pretermitted spouse, you have the option of choosing whether to take under the elective share or under your pretermitted spouse share.
It is crucial to take a detailed look into which calculation will afford you the greatest share, either under the elective share or the pretermitted spouse share. Generally, in Florida, the elective share that a surviving spouse is entitled to is 30% of the deceased spouse’s elective estate. On the other hand, the pretermitted spouse share, which can also be called the intestate share, will generally be 50% of the deceased spouse’s intestate estate. While 50% sounds greater than 30%, the “elective estate” where the elective share comes out of includes a broader range of assets than the intestate share includes. Regardless, without completely calculating both shares, it will be hard to estimate which will be a greater share.
If you find yourself in the position of holding the status of pretermitted spouse, it is highly recommended that you reach out to probate attorney to assist you in choosing between the remedies available to you.
*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*