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Prenuptial Agreements and Elective Share: Know Your Rights

July 27

The Elective Share with No Prenuptial Agreement: Are You Really in Control of Your Estate Plan?

Written by Thomas Upchurch

Prenuptial agreements, popularly thought of in the context of divorces and family law, have significant effects on estate plans. Specifically, prenuptial agreements can modify spousal rights in Florida. Without a prenuptial agreement, or something similar like a postnuptial agreement, a testator, or the person creating a will, is limited in how they may distribute their estate. Understanding how lacking a prenuptial agreement impacts the elective share is critical for estate planning.

Elective Share Basics

Generally, a testator may distribute their estate in whatever manner they see fit. The estate’s beneficiaries usually do not have a claim on specific assets or properties. But surviving spouses in Florida are entitled, as a matter of law, to an elective share of their deceased spouse’s estate. 

Historically meant to protect widowed women dependent on their husbands, the elective share assures that a testator may not “disinherit” a surviving spouse and that the surviving spouse is left with something.

Irrespective of the terms of a will, the surviving spouse may claim, or “elect,” this elective share. This share is roughly 30% of the deceased spouse’s “elective estate.” Elective estate property is explicitly defined by  Florida law and differs from the actual estate value. It consists of the decedent’s interest in:

  • The probate estate and protected homestead property
  • Any accounts or securities co-owned, held in joint tenancy with right of survivorship, or held in tenancy by the entirety
  • Revocably transferred property
  • The net surrender value of a life insurance policy
  • Retirement accounts, pensions, or other similar plans
  • Certain property transferred within a year of the decedent’s death

Calculating the elective share is not a straightforward calculation, so an experienced probate attorney can advise on what exact property will be included in the elective estate and what portion of the value will be included.

If you have more questions about who is entitled to an elective share, the election process, or how the elective share is calculated, check out The Complete Guide to Elective Share Law in Florida.

A Prenuptial Agreement’s Impact on Estate Planning

A prenuptial agreement, or “prenup,” can control, among other things, what happens with a couple’s property when their marriage ends, either by divorce or passing. A prenuptial agreement permits a couple to determine nearly all terms of marriage except issues concerning children, like timesharing and child support. 

Prenuptial agreements have important implications for estate planning and are a frequently used tool in asset protection.  Indeed, a prenuptial agreement can be used to waive spousal rights. Spousal rights include the elective share, along with rights like the intestate share, pretermitted share, and homestead. § 732.702, Fla. Stat.

A surviving spouse may waive a single right, all rights, or any combination of rights. A waiver of the elective share, like the waiver of all spousal rights, must be in writing and signed by the waiving party in the presence of two subscribing witnesses. Id.

Effect of the Elective Share with No Prenuptial Agreements

Simply put, in situations where a couple does not have a prenuptial agreement (or similar agreement) explicitly waiving the surviving spouse’s elective share, the surviving spouse is entitled to the elective share. The terms of the will, design of a trust, or any form of creative estate planning cannot alter a surviving spouse’s right to the elective share. Indeed, it is only a valid waiver in a prenuptial agreement (or similar agreement) that can change this right. 

Common Scenarios Where Surviving Spouses Waive Spousal Rights in Florida

In scenarios where a testator wishes to leave most or all their property to a surviving spouse, a prenuptial agreement, or lack thereof, addressing spousal rights might have little impact on the estate plan. But in other scenarios, no prenuptial agreement with a waiver of the elective share may cause problems. Here, a prenuptial agreement could be a useful estate planning tool. 

However, a testator must understand the impact of an elective share with no prenuptial agreement in a few common scenarios like when a couple enters a second marriage later in life, and one or both spouses already have children from a prior marriage. The spouses may each have sources of wealth and may have children that will require support on their parent’s passing. Or the spouses may simply desire to leave most of their estates to their respective children. Here, the spouses may waive the elective share in a prenuptial agreement.     

Likewise, if a spouse owns or has an ownership interest in a family business, the spouses may use a prenuptial agreement, including a waiver of the elective share, to plan around the business and its future ownership more thoughtfully.

Frequently Asked Questions about Prenuptial Agreements and the Elective Share

What is a prenuptial agreement?

A prenuptial agreement, or premarital agreement, is a contract entered into between prospective spouses before marriage. A prenuptial agreement can determine how the couple will divide property and determine the amount of spousal support in the event of divorce. But a prenuptial agreement may also impact the estate planning process by altering a surviving spouse’s “spousal rights,” like the right to the elective share.

Can You Waive Spousal Rights in Florida?

Yes. You can waive spousal rights, including waiving the right to the elective share. Florida law expressly outlines the process to waive, completely or in part, the elective share, intestate share, pretermitted share, and homestead rights, among other rights at any time before or during the marriage. To be valid, however, a waiver must meet specific requirements outlined by Florida law.

Does a prenuptial agreement override a will?

It can. Assuming the parties entered into an enforceable prenuptial agreement containing a waiver of the elective share, the prenuptial agreement’s terms can take precedence or “override” the will to the extent that Florida law entitles a spouse to receive an estate at least as large as the elective share. A valid waiver of the elective share in a prenuptial agreement overrides any terms of a will purporting to provide for an elective share.    

Specifically, in the case of a waiver of an elective share in a prenuptial agreement, a surviving spouse could be completely “disinherited,” or left nothing, without the ability to file an election. A will could also bequeath the surviving spouse less than the surviving spouse would receive under the elective share. In these scenarios, the prenuptial agreement does not override the will; rather, it gives the testator greater license to structure the testator’s bequest.

Does a prenuptial agreement override a trust?

It can, just like in the case of a will. Assuming the parties entered into an enforceable prenuptial agreement containing a waiver of the elective share, the prenuptial agreement’s terms can take precedence or “override” the terms of a trust to the extent that Florida law entitles a spouse to receive an estate at least as large as the elective share. A valid waiver of the elective share in a prenuptial agreement overrides the terms of a trust purporting to provide for an elective share.

Like with a will, in the case of a waiver of an elective share in a prenuptial agreement, a surviving spouse could be completely “disinherited” from any trust, or left nothing, without the ability to file an election. In this scenario, the prenuptial agreement does not override a trust; rather, it gives the trustee greater license to structure the trust.

How does a prenuptial agreement affect the elective share?

A prenuptial agreement can waive a spouse’s right to the elective share, partially or in its entirety. Because Florida law grants a surviving spouse the right to “elect” against the will and receive the elective share, a testator may not “disinherit” their spouse, or leave the spouse nothing if there is an estate. However, a prenuptial agreement including the proper waiver permits a surviving spouse to waive their right to claim the elective share.

What happens with an elective share if I do not have a prenuptial agreement?

In cases where the parties have not entered into a prenuptial agreement (or similar agreement) waiving entitlement to the elective share, a qualified surviving spouse is entitled to the elective share, regardless of any language in the will or trust. The spouse may file an election irrespective of the length of the marriage or whether the parties are separated. 

Conclusion

In sum, whether a couple enters into a prenuptial agreement before marriage may have an outsized effect on estate plans, not just issues surrounding divorce and family law. Without a valid waiver of marital rights through a prenuptial agreement (or similar agreement) a surviving spouse is entitled to the elective share, regardless of the terms of a will, use of a trust, or any other form of estate planning. Speaking with an experienced estate planning attorney can help you better understand the impact of no prenuptial agreement on the elective share or determine the impact of your prenuptial agreement on your estate plan.