If You Don’t Want Your Spouse To Claim An Elective Share Of Your Estate, Don’t Leave Any Ambiguities In Your Estate Plan

Although the idea of spouses being financially independent of each other has become more popular in society, the society still treats married people as though they have a legal obligation to support their spouses financially.  The court will award you to pay alimony if your spouse has no other means of financial support, meaning that your spouse owns no separate assets and is unable to work.  If you and your spouse are still married when you die, and you have not written a will, the court will either award your entire estate or a hefty portion of it, to your spouse, depending on whether you have children.  Even if you write a will, your spouse can still inherit more than what your will designates for them by claiming an elective spousal share of your estate during probate.  The elective share is 50 percent when the decedent does not have children and 30 percent when the decedent has children.  A Tampa probate lawyer can help you and your family resolve disputes over the elective spousal share.

When One Version of the Will Waives the Spouse’s Elective Share, but the Other Does Not

If you do not want your spouse to collect an elective share of your estate, the two of you can sign a prenuptial or postnuptial agreement indicating that your spouse has waived the right to an elective share.  You can also specify in your will that your spouse has waived their right to claim the elective spousal share.

In the version of his will signed in 1982, Bernard stated that his wife Estelle had waived her right to an elective share of his estate.  Bernard wrote a new version of his will in 2007.  He indicated that this new will revoked all previous versions of his will.  The new version did not say anything about Estelle waiving her right to an elective share.  It also did not say that she was still entitled to the elective share; it simply did not mention the matter at all.

When Bernard died in 2010, Estelle tried to claim her elective share of his estate.  This started a dispute over whether the 2007 version of the will was valid.  It listed three witnesses, but it only bore signatures for two of them.  Murray, the non-signing witness to the 2007 will, indicated that he had not been present when the other two witnesses signed the will.  The outcome of this case is not a matter of public record, because the appeals court only decided that the matter was still open for discussion.

Reach Out to an Attorney Today

If the decedent left more than one will, a probate lawyer can help you show that the new one revokes all the others or that the new one is not valid and the old version should stand.  Contact David Toback in Tampa, Florida to set up a consultation.

Source:

scholar.google.com/scholar_case?case=7708495200984931251&q=probate+weiss&hl=en&as_sdt=4,10&as_ylo=2011&as_yhi=2021