The first time I heard the word pretermitted spouse was in law school. I had never heard the word and needed to get a clear definition of the term if I were ever going to use it in the practice of law. I went to school prior to Google being the source of all information so I researched it in law books. To simplify the definition a pretermitted spouse is a spouse who has been left out of a will. How do you become the “forgotten?”
Typically, this becomes an issue when a person marries after making a will and fails to include the new spouse before dying. For the most part individuals always think of estate planning as something you can put off until the very end. Unfortunately, none of us are equipped with a timer that will tell us exactly what date and time we will pass. This is how you can become the “forgotten.” There are some exceptions to this rule. Sometimes married couples have a prenuptial agreement where the intention is spelled out that the spouse is intended to be left out of the will. There are also provisions that can be added to any will that make it clear that the intention is to leave out any future spouse. Then there are those assets that are owned by entities by the entireties, which simply means both spouses own this asset with an undivided 100% interest.
An example of this would be a bank account held in the name of the married couple. If one dies, the other has 100% interest in that account if they are held by entities by the entireties. If you are a pretermitted spouse or “the forgotten” and none of the above exceptions apply to you then what happens? There are two views on this legal matter.
1. You can be a surviving spouse and have no children or any descendants of the survivor. If the only survivor is a surviving spouse, or if all the lineal descendants are also lineal descendants of the surviving spouse and the decedent, then the surviving spouse receives the entire estate of the decedent.
2. You can be a surviving spouse where there are no surviving descendants from both decedent and the surviving spouse. If there are descendants of the decedent who are not also of the surviving spouse, or if there are descendants of the deceased, but the surviving spouse has descendants not also from the decedent, then the surviving spouse receives one-half of the intestate estate.
The estate of any person carries so many intricacies such as homestead rights, elective share, and election against a will, family allowances, social security death benefits, and marital agreements. Each one of these issues has a specific way that Florida distributes the property of the estate. Moreover, some of these issues have a statute of limitation. That means that the clock starts ticking immediately and you may be running out of time to protect these rights. Do not become one of the “forgotten.”
Rachel M. Alvarez, ESQ.
The Alvarez Law Firm, A Professional Association