This newsletter begins a series discussing the impact of marriage on the legal rights of spouses to share in each other’s assets.  We begin by talking about the “elective share” and the “pretermitted spouse.”

It used to be that the majority of marriages involved two young individuals with little to no money or property.  However, there has been a growing trend among Americans to postpone marriage.  Additionally, due to Florida’s recent recognition of same-sex marriages, it’s likely that there will be even more marriages between established adults.  One result of this trend is that individuals are entering into marriage with larger assets.  Although these individuals may be more knowledgeable about planning than their adolescent peers, not everyone understands the legal implications that marriage may have on estate plans.

First, here in Florida, you may not disinherit your spouse.  This means that, contrary to what your will might say, your spouse has the right to “elect” to take 30% of your “elective estate.”  Failure to plan for this absolute right – known as the “elective share” – may wreak havoc on your estate plan.  However, with proper planning, ideally performed before the marriage, you can provide for your spouse without destroying your estate plan.

Another all too common situation arises when you have already created a will prior to marriage, but fail to revise it to include your new spouse after marriage.  Florida Statute §732.301 allows for a “pretermitted spouse” (i.e., a spouse not accounted for in the other spouse’s will) to “elect” to take the value of your estate equal to that amount he or she would have received had you died without a will.  Much like with the elective share, by electing to take the pretermitted spousal share, your spouse may unravel your estate plan.  Nothing more clearly illustrates this potential harm than the Florida case, Estate of Dumas.

In Estate of Dumas, Mr. Dumas had drafted a will leaving everything to the children of his former spouse.  Mr. Dumas later remarried to his new wife, Daisy, but never redrafted his will.  After he passed away, Daisy contested the will and the Court determined that Daisy, as a pretermitted spouse, was entitled to receive the pretermitted spousal share.  Because Mr. Dumas had no children of his own, Daisy’s pretermitted spousal share was 100% of his estate!  So, if Mr. Dumas’ will reflected his true intent, he completely failed to effectuate his wishes.

The institution of marriage has many legal implications on the assets and rights of both spouses.  By engaging in proper estate planning, you can circumvent the risk of having an elective share or pretermitted spousal share ruin your estate plan.  For more information on how to ensure that your estate plan remains intact, we encourage you to attend one of our monthly educational workshops.

Our next “Truth About Estate Planning” workshop will be held at Cramer Law Center, located at 3030 Hartley Road, Concorde I, Suite 290, Jacksonville, Florida 32257, on February 3, 2014 from 10:45 a.m. to 1:45 p.m.  Please call us at (904) 448-9978 to reserve your seat.


Cramer Law Center offers comprehensive, flat fee estate planning services including wills, trusts, durable powers of attorney, health care surrogate designations, living wills, designations of preneed guardian, and more.

Please feel free to post comments on our Facebook or Twitter or to make an appointment if you have individual questions or concerns.

Disclaimer: This newsletter presents general information about estate planning and related topics. It is not intended as legal advice, nor should you consider it as such. You should not act upon any information contained in this newsletter without seeking professional advice from a lawyer or CPA licensed in your state or country.

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