What Is A Pretermitted Spouse?

More Florida residents are having second marriages, multiple divorces, and getting married later in life. This trend carries with it the chance that these residents’ wills may be contested by a pretermitted spouse. But who is that? And what rights does a surviving spouse have to a deceased person’s property when they are left out of the Will?

The Case of the Pretermitted Spouse

A “pretermitted party” is a person who has been left out of a Will because they did not exist, at least in that role, at the time the Will was executed. The most common pretermitted parties are pretermitted children and pretermitted spouses. To understand who is a pretermitted spouse, consider this example:

Alan was married to Beth and had two children, Dillan and Ellen. During their marriage, Alan and Beth prepared Wills, granting them each specific and residual property from the other person’s estate, and naming their two children as alternate beneficiaries. After fifteen years, Alan and Beth got divorced and Alan met and later married Claire. Alan and Claire had a child Faith. But Alan never revised his Will after he divorced Beth. When Alan dies, who receives his property?

Inheritance Rights of a Divorced Spouse

Let’s start with Beth. When Alan dies, the Florida Probate Court will be responsible for executing Alan’s Will according to its terms. But this doesn’t mean that his estate will pass to his ex-spouse, Beth. Florida law says that a divorced spouse is treated as if he or she died on the date of the judgment of divorce (or dissolution or annulment), unless the Will specifically says otherwise. If Alan’s will included alternate beneficiary awards (and we recommend that they do), anything that would have been awarded to Beth would instead pass to those alternate beneficiaries listed in the Will.

Inheritance Rights of a Surviving Spouse

But where does that leave Claire? As a pretermitted spouse, does she have any right to Alan’s property even though she was excluded from the Will entered before she met him? Florida law covers that too. It says that when a person marries after making a Will, and the pretermitted spouse survives that person, he or she is generally entitled to the surviving spouse’s elective share under Florida’s intestate succession laws. She may also be entitled to claim the home she lived in with Alan under Florida’s Homestead Exemption, which you can read about here.

In addition to that, a spouse can also claim any exempt property included in their deceased spouse’s estate unless that property is specifically awarded to someone else under the Will. Exempt property includes:

• Up to $20,000 in household furnishings, appliances, and furniture in the deceased person’s primary residence
• Up to 2 automobiles titled in the deceased person’s name and regularly used by them or their immediate family members for personal use
• Florida prepaid college program contracts and college savings agreements
• Death benefits for teachers and school administrators

This exempt property will be awarded to the surviving pretermitted spouse free of any claim against the estate except for secured debt related to that property (such as a car loan on an exempt vehicle).

For Claire, this means that she may be able to claim Alan’s vehicles, furniture and furnishings, as well as college savings accounts the family had created for Faith. In addition, if she and Alan had purchased a home as tenants by the entirety during their marriage, that home will pass to her automatically upon his death, without probate court involvement. The same is true for joint bank accounts or insurance policies listing her as the designated beneficiary.

Intentional Omission of a Surviving Spouse from a Will

However, there are three exceptions to the pretermitted spouse’s surviving spouse rights that could leave a surviving spouse unable to claim an interest in the deceased person’s estate:

1. If Alan and Claire signed a prenuptial agreement or postnuptial agreement waiving their probate rights as a surviving spouse
2. If the surviving spouse is provided for in the Will
3. If the Will intentionally omits the spouse

What all three of these exceptions have in common is that they are intentional omissions of a surviving spouse from the Will. When a spouse or child is pretermitted, it is generally because the Will was prepared without considering the possibility of a new child or spouse joining the family after the Will is executed. These exceptions acknowledge the second (or subsequent) spouse and explicitly limit his or her right to claim the surviving spouse’s share of the estate. This could be done to protect the awards given to the children from a first marriage, or to limit the ability of a spouse to take financial advantage of a marriage late in life and receive a substantial portion of the deceased’s estate.

When a pretermitted spouse or child has been left out of the deceased’s estate plan, it can create a contested probate that puts everyone in the family on edge. You need an attorney who can balance legal expertise with sensitivity to the family’s interests. At Harrison Estate Law, P.A., our experienced estate and probate team knows how to stand up for a surviving spouse’s rights, while also honoring the rest of a decedent’s family. We can help you consider your options to claim exempt property and negotiate on your behalf with your family. Contact us here or call 352-559-9828 to get help today.