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Make Sure That Your Will Does Not Conflict With Your Prenuptial Agreement


Young people are always saying things to which you cannot relate, further reminding you that you are old.  “7:30 in the morning is too early to get up.”  “What’s a modem?”  “Prenuptial agreements kill the romance.”  Of course, older people are wiser.  Once you get to a certain age, the age when you feel chuffed with yourself when you put your new tax return next to its older siblings in your filing cabinet and then head to the supermarket to get the items that are on sale this week, prenups are just part of the fun of planning your life with your beloved.  If you and your sweetheart are really in the mood for some old fogey fun, try rereading the prenup that you signed before you got married and compare it to the estate planning documents you have signed since your wedding.  If that sounds boring even for an old geezer like you, consider that much of your meticulous estate planning could be in vain if there are discrepancies between your prenuptial agreement and another document, such as your will.  An Orlando estate planning lawyer can help you correct these discrepancies.

Beware of Ambiguity About the Spouse’s Elective Share

You can disinherit any family member you choose, and the only family member who has the right to override your decision to disinherit them is your spouse.  Florida law gives the decedent’s surviving spouse the right to claim an elective share of the net value of the estate after it has paid its taxes and settled its debts.  The spousal share is 50 percent if the decedent is childless and 30 percent if the decedent has children.

When Paul and Marilyn signed a prenuptial agreement in 2011, each spouse agreed to waive their right to an elective share of their spouse’s estate.  So far so good.  Two years later, Paul updated his will, which is also a good idea.  In the updated will, he provided for the establishment of a trust with Marilyn as the beneficiary; the amount that would fund the trust was equal to the amount of her elective share, if she had not waived it.

When Paul died in 2017, a dispute arose during probate over whether the trust was tantamount to an elective share and therefore whether the court could enforce that provision of the will.  The worst thing is that the conflict was entirely preventable.  The parties could have voided the prenup when Paul wrote the new will, or he could have just calculated one third of the estimated value of his property and written that number in the will, instead of writing “one third” and phrasing it as a fraction of his estate.

Contact Gierach and Gierach About Avoiding Estate Planning mistakes

An estate planning lawyer can help you ensure that your well-intentioned plans to protect your spouse and prevent probate conflict go as planned.  Contact Gierach and Gierach, P.A. in Orlando, Florida to discuss your case.

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