What Is A Waiver Of Spousal Rights In Florida?
State law in Florida provides certain rights to decedent spouses. These rights include the right to homestead exempt property, the elective share, the intestate share, pretermitted share, and more. These rights are guaranteed under the law but there are times when a spouse may choose to waive their rights. Why would any spouse waive their rights in Florida? Below, our Daytona Beach estate planning attorney explains this and more.
Why Would a Spouse Waive Their Rights?
While it is common for a person to want to leave their entire estate to their spouse after they pass away, not everyone feels this way. There are many reasons why a person may want to disinherit their partner. For example, if one spouse has children from a previous relationship, they may seek a waiver of spousal rights to ensure those children are cared for.
Under the intestacy laws in Florida, surviving spouses are entitled to 100 percent of their deceased’s spouse estate, even if they have children with the decedent. However, if the deceased spouse had children from a previous relationship, the spouse is entitled to just 50 percent. The remaining 50 percent is then distributed to the children. When a person has drafted a will, the property is distributed to the beneficiaries named within the document, bypassing the intestacy laws in the state. Still, it is not possible to fully disinherit your spouse in your estate plan.
The only mechanism available for those that wish to completely disinherit their spouse is a waiver of spousal rights. These waivers can be very broad and encompass the entire estate, or they can be very specific. For example, a spouse may waive their right to the homestead property by signing and filing a waiver for public record. On the other hand, a spouse may waive their right to the spousal elective share, but choose to keep other protections provided by the law.
Regardless of what a spouse chooses to do, it is strongly recommended that they speak to an estate planning attorney who can determine whether waiving rights is the best option for a spouse considering the circumstances.
How to Waive Spousal Rights in Florida
Florida does not use a specific form to waive spousal rights but still, there are certain requirements they must meet in order for the waiver to be valid and enforced.
The surviving spouse must first sign a waiver of their rights in the presence of two witnesses. If the waiver is drafted during the marriage and not before, each spouse must fully disclose their assets. If the waiver is drafted prior to the marriage, individuals are not required to disclose their assets.
Our Estate Planning Attorney in Daytona Beach Can Protect Your Rights
Whether you want your spouse to waive their rights or you want to waive yours, you need legal help. At Bundza & Rodriguez, our Daytona Beach estate planning attorney can advise you of your rights and ensure they are protected so you do not face any consequences in the years to come. Call us today at 386-252-5170 or fill out our online form to schedule a consultation and to learn more.
Source:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.702.html
