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Florida Probate Blog

Posts Tagged: prenuptial agreement

Waiver of Elective Share

Written by on Aug 27, 2019| Posted in: Probate

Waiver of Elective Share in a prenuptial agreement is modifiable only by amending, revoking or abandoning the prenuptial agreement. According to the Fourth District Court of Appeals, waiver of elective share in a prenuptial agreement can only be invalidated by amending, revoking or abandoning the prenuptial agreement, not by executing a will or trust leaving an amount equivalent to the elective share. A husband and wife were married in 2011.  Prior to their marriage, they entered into a prenuptial agreement wherein wife waived her right to an elective share in husband’s estate.  The prenuptial agreement did allow them to make gifts to each other by will or codicil without invalidating the prenuptial agreement, to wit: Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other.  Either of the parties may elect to make a gift to the other by […]

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Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of […]

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What is a Prenuptial Agreement?

Written by on Jan 30, 2009| Posted in: Estate Litigation

First District Upholds Integrity of Contracts in Recent OpinionA prenuptial agreement is a contract entered between partners before marriage, or civil unions in those jurisdictions recognizing those. The contract’s contents typically include provisions for the division of marital assets and spouse support in the event the relationship terminates. Prenuptial agreements usually arise in two very different legal contexts: (1) divorce and (2) probate. In Florida, the rules applying to these two vastly-different courtrooms are exclusive of one another. My experience has been dealing with prenuptial agreements in the probate arena, where the marital relationship has been severed not by divorce, but by the death of one of the spouses.

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