Santa Barbara
66° F
Clear
Clear
Santa Maria
50° F
Clear
Clear
San Luis Obispo
53° F
Clear
Clear
Ventura
56° F
Clear
Clear

Marriage, death and estate planning

Published On: Nov 11 2013 11:32:49 AM CST
Updated On: Nov 11 2013 12:22:49 PM CST
will, legal papers, generic, estate planning

iStock/IuriiSokolov

By attorney Astrid de Parry, Special to THELAW.TV

Divorce happens!

According to the National Center for Health Statistics, there is one divorce for every two marriages since the year 2000. According to the Florida Supreme Court: "The institution of marriage has been a cornerstone of western civilization for thousands of years and is the most important type of contract ever formed." Clearly, some people do not revere the institution of marriage as much as the courts do. Most attorneys encourage their clients to revisit their wills in the event of a subsequent marriage or divorce. This is not just because the attorney wants to make more money, but rather, because the law attaches independent significance to these events, which may or may not be consistent with your estate plans.

What if you die first?

Consider the typical married couple today. As soon as they get divorced, any provisions in their wills in favor of the divorced spouse become void by operation of law. As soon as they remarry, the law gives them the right to receive a share of their new spouse's estate, in the absence of a valid marital settlement agreement to the contrary. Let's say you and your wife have mutual wills that leave everything to each other and then to the children upon death of the surviving spouse. If you die first and your wife fails to protect the children by entering into a property settlement with her new husband, your children will have to share her estate with the second husband if she dies before he does.

What is the surviving spouse's "elective share" of the "elective estate"?

It doesn't matter if the second marriage lasts 50 years or 50 minutes. In the absence of a valid prenuptial or postnuptial agreement to the contrary, the surviving spouse will receive an "elective share" or a "pretermitted spouse's share" of the estate. The surviving spouse of a person who dies domiciled in Florida is entitled to receive an amount equal to 30 percent of the fair market value of the "elective estate" after deducting all claims paid or payable from the "elective estate" and all mortgages, liens, or other security interests on property included in the "elective estate." This is called the surviving spouse's "elective share."

What is the surviving spouse's "pretermitted share" of the probate estate?

Similarly, when a person marries after making a will and the spouse survives the testator, the surviving spouse is entitled to receive a share of the probate estate as if the person had died intestate (i.e., had made no will), unless the will was made in contemplation of marriage or some provision was made for or waived by the surviving spouse by prenuptial or postnuptial agreement. This is called the "pretermitted spouse's share." Thus, if your wife fails to make a new will after she remarries, her second husband will be entitled to claim 50 percent of her probate estate, even if her old will left everything to your children. Furthermore, even if she makes a new will after she remarries, her second husband will be entitled to claim his "elective share" (i.e., 30 percent of her "elective estate"), against the will in the absence of a valid prenuptial or postnuptial agreement to the contrary.

You can protect your children by planning for the second marriage today!

Why would anyone choose 30 percent of the "elective estate" over 50 percent of the probate estate? Because the "elective estate" includes property that passes outside of probate including, but not limited to, the decedent's ownership interest in POD accounts, joint tenancy property, trust accounts, the cash surrender value of life insurance policies, pension plans, retirement accounts, and even certain property transferred during the one-year period before death. Nowadays, most people have as much money invested in assets that will pass outside of the probate process, but the surviving spouse can count those assets in calculating his or her "elective share" of the "elective estate." In summary, the law will protect your surviving spouse after you die. It's up to you to protect your children by planning your estate before you enter into any new marriage contracts.

The author, Astrid de Parry, is a DeLand, Fla., estate planning attorney.

Comments

The views expressed are not those of this company or its affiliated companies. Please note by clicking on "Post" you acknowledge that you have read the Terms Of Service and the comment you are posting is in compliance with such terms. 
blog comments powered by Disqus
  • fatal_accident_investigation

    Extensive Investigation into Triple Fatal Accident

    An extensive investigation is underway to determine the cause of death in a triple fatal rollover accident Monday morning in Santa Barbara.

  • Triple Fatal Auto Accident on Highway

    3 Dead In Early Morning Accident, Driver Arrested For DUI

    The 101 southbound through Santa Barbara reopened just before 12:30 Monday afternoon as authorities investigate what they say was a deadly two car DUI accident.

  • fuzion_store_business_santa_barbara

    UCSB Group Boycotts Business For Promoting Deltopia

    A UCSB student group is boycotting a local business for creating the Deltopia Facebook page, which they said brought in thousands of outsiders to the small college town.

  • girl_child_coughing_sick_whooping_cough

    Contagious Diseases Making a Comeback in California

    Deadly diseases that were a thing of the past are making a comeback in California.

  • Witnesses to Fatal Crash

    Eyewitnesses See Triple Fatal Crash from Roadside Camp

    A homeless couple watching the freeway from their campsite in Santa Barbara this morning, witnessed the triple fatal accident that took the lives of two teens and a young man.

  • Parents of Mallory Dies Sue Congresswoman, Her Former Aide, and U.S. Government

    The parents of a young Santa Barbara woman killed in a high profile, DUI case are suing Congresswoman Lois Capps, her former aide Raymond Morua, and the U-S government in federal court.

  • Triple Fatal Auto Accident on Highway

    DUI Driver in Fatal Early Morning Accident Ordered to Detox Program in 1995

    The Santa Barbara woman arrested for DUI in the early morning accident that left three people dead early Monday morning has a lengthy court record out of Ventura County. Kimberly Kreis, 52, was ordered to serve 30 days in a detox program as far back as 1995.

    The car that Kreis was driving crashed into a disabled Mazda near the Castillo off-ramp of the southbound 101 freeway in Santa Barbara. Two 17 year old North Torrance High School students were killed in the accident- Jessica Leffew and Danielle Murillo. 20 year old Brian Lopez also died in the wreck. The driver of the Mazda, Eric August, is hospitalized in critical condition.

    A NewsChannel 3 investigation found records out of Ventrua County that appear to show that Greis has at least one prior conviction involving drugs and or alcohol, and in 1995 she was ordered to serve 30 days in a Cottage Hospital detox program.

    CHP investigators are still trying to piece together why the Mazda veered right into a guardrail, causing it to flip onto it's roof before coming to rest in the middle of the southbound freeway, which set into motion the deadly accident.

    CHP Officer Jonathan Guiterrez, said "A lot of things could have happened, He could have fallen asleep. We just don't know at this point."

  • Larry Lee Cal Poly Coach

    Cal Poly Baseball Earns No. 1 National Ranking

    The Mustangs achieved the school's second No. 1 national ranking in Division I as Collegiate Baseball Newspaper has placed Cal Poly atop its Top 30.

  • Lupita Nyong'o

    REUTERS/Danny Moloshok

    People's 'World's Most Beautiful' list 2014

    People magazine recently named Lupita Nyong'o its "World's Most Beautiful" for 2014. See which other ladies earned a coveted spot on the annual list.

  • Slideshow: Extensive Investigation into Triple Fatal Accident

    An extensive investigation is underway to determine the cause of death in a triple fatal rollover accident Monday morning in Santa Barbara.