Remarriage and Elective Share
April 17, 2018
Over the years, the likelihood of remarriage has risen among older adults. In a recent study of Americans who’ve been previously married, 67 percent of those ages 55 to 64, and 50 percent of those 65 and older had remarried. These unions come with unique estate planning considerations.
Older adults are more likely to have previous estate plans, and these should be reviewed prior to remarriage. The parties often have their own families, complete with adult children and grandchildren, who may have been provided for through a previously executed will or trust. Decisions must be made as to how each spouse would like to dispose of his or her estate in light of the new relationship.
Under Florida law, a surviving spouse always has the option to take what is called an elective share of a deceased spouse’s estate. Currently, the elective share is 30% of the elective estate, which includes any property subject to probate, as well as other types of assets, such as joint bank accounts, revocable trust property, retirement plans. Due to a recent change in Florida law, the deceased spouse’s homestead is now also included in the elective estate.
If a spouse does not waive his or her right to the elective share and/or homestead share, he or she may choose to take an inheritance that was not planned for by his or her deceased spouse. Negotiating and signing a valid pre- or postnuptial agreement can prevent this unintended consequence as well as possibly avoid animosity between the surviving spouse and other members of the deceased spouse’s family.
Depending on the type of assets owned, the Florida elective share law can be a difficult area to navigate, and it’s always wise for anyone contemplating remarriage to consult with an experienced trusts and estates attorney.