Do you know someone who is thinking of getting married. This time it will last forever….”Till
death do us part,” as the vows say.
No worries about divorce, but what about your grandpa’s money when he
dies. No worries. Grandpa’s will provides for all the
grandchildren so we are fine.
It is time to think again. There is a “dirty little legal
secret” lurking in Florida (and perhaps other states as well), that creates a
trap for the uninformed. Now, if
you continue to read on you will no longer be part of the uninformed and
hopefully, neither you nor your loved ones will fall into this potential trap.
Okay, here we go… Let’s say you have two loving grandparents
who always told you they would pay for your college (and, if lucky, graduate
school) or would give you money for your first house, or Mercedes or whatever….
“We have it all written out in our wills,” they assure you.
Then Grandma
passes away. Grandpa gets a little
lonely until he hooks up with the widow “Bernice,” who he meets at the Century
Village Clubhouse in Broward County, Florida. After about a
year of Bernice wooing Grandpa with pot roast and apple pie (and heaven knows
what else), Grandpa decides to do the honorable thing and tells the family he’s
tying the knot. After seeing the
expression on your face (L), Grandpa takes you
aside and assures you that, regardless of what happens, you are still in his
will, and he will make good on his promises.
Of course you trust that Grandpa is still thinking with his
heart, and all is well.
A month after the wedding, and three weeks after your
acceptance to Harvard Dental School, Grandpa dies of a heart attack. “He died with a smile on his face,”
Bernice says. Obviously you are saddened that Grandpa is gone and he won’t have
the joy of seeing you graduate from dental school. But you know that Grandpa will be with you in spirit
because, after all, his generosity is helping make this deal happen.
Several weeks later, as that hefty deposit for Harvard is
about due, you call Grandpa’s estate attorney and ask if it would be possible
to get the necessary funds.
“Unfortunately,” you hear the attorney say, “Your Grandpa’s
wife has opted to elect against the will and claim her spousal share of Grandpa’s
estate.”
“Huh?” you reply. “Mind translating from legalese into
English, please.”
What you hear next, at least in your life, makes a root
canal seem mild. Essentially,
under Florida law, notwithstanding that a spouse has a will, the surviving
spouse has certain rights, including the right to take a FULL THIRD of the dead
spouse’s entire estate that is subject to probate, REGARDLESS of what the will
says. So once Bernice gets her
third, if the distribution per the will of your share of the remaining two-thirds
does not cover that Harvard Dental School bill you are, essentially, out of
luck.
So what “could” Grandpa have done to prevent these
unintended results? Think
hard….like Jeopardy, the questions hints at the answer…. Ding, ding, ding.You got it! Grandpa could have had Bernice sign a
prenuptial agreement that would have waived Bernice’s rights to any of those
otherwise inalienable spousal rights under Florida probate code. Now why would Bernice have
agreed to this, you might ask?
Although the list of possible reasons are plentiful, rather
than take up megabytes of computer space on this exercise, suffice it to say
that with a well crafter prenuptial agreement, the more affluent spouse can
still provide for the other spouse and still ensure that his or her intent for
other relatives is carried out.
Now, obviously, the completely fictitious example above (got
to include those legal disclaimers, folks) is merely once instance where a
person believes the provisions in
his or her will to be ironclad, and that is simply not the case. An uncle, who never had kids and wants
to leave all of his money to his nieces and nephews, (and does so in his will),
marries a wealthy woman (who doesn’t need his money). The uncle passes and the family discovers that she gained
most of her wealth by taking other’s money including a third of the nieces’ and
nephews’ in this case.
The moral of the story is simple….wealth is not the sole
consideration for getting a prenuptial agreement. In fact “wealth” may not even be a consideration at all. It is about resolving matters as the
parties intend.
So, if you or someone you know (who might want to include
you in his/her will) has announced an engagement during this holiday season,
suggest they consult with a seasoned family law attorney about a prenuptial
agreement. Often, as I do, the family law attorney will work together with an
estate planning attorney before the
marriage as the future bride or groom may be able to ensure that his or her
intents are carried out through trusts and other estate planning tools.
So encourage your loved ones (or yourself) to consult with a family law attorney and think before they ink. The money they save may be your own!
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