How do spouses waive their rights to an elective share?

How do spouses waive their rights to an elective share?

On Behalf of | Sep 18, 2015 | Firm News

A previous post here addressed the provision of a spouse’s elective share in terms of the administration of estates in Florida. Spouses can choose to keep whatever they have been devised in the decedent’s will or trust, or they can opt for the elective share, which in Florida is set at 30 percent of the estate. The public policy behind elective or spousal shares is to protect spouses and children from being completely disinherited by a will. While the law generally prevents disinheritance in this way, spouses can waive their rights to the elective share. But, how does a Florida resident go about doing this, and why would someone want to.

Florida Statute 732.702 covers this situation. The law basically requires any waiver of an elective or spousal share to follow similar formality requirements as it does the making of wills. That is, the waiver needs to be made in writing and signed by the waiving party and two witnesses. The witnesses must be present when the waiver is signed. The waiver can be whole or partial, and can apply not only to elective shares, but intestate shares, homestead, family allowances, personal property and other rights.

It should be noted that waivers made in other jurisdictions or before Florida’s law went into effect are valid as long as they were valid when and in the place they were executed. Such waivers can be made before or after a marriage, but if it is done subsequent to the nuptials, each party must fairly disclose his or her estate to the other prior to its execution.

The reasons a person might waive rights in such a fashion are myriad. Perhaps the marriage is beginning to break up, and the parties want to make sure soon that the soon-to-be ex-spouses do not inherit if one dies before the divorce is final. In Florida, it is sometimes the case that marriages later in life may cause such waivers to occur so as to help ensure the estate goes, in full, to children of one of the parties that has from a prior relationship.

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