Going to the Chapel and You're Gonna Get Married? Florida Updates Your Will Automatically

Marriage and Wills

By tradition, last month (June) was the month of weddings. In all of that wedded bliss, then, maybe seeing an estate planning attorney was not at the top of your list. On one hand, you're safe: Florida adds your spouse to your will in your estate plan when you get married. But as for the rest of your plan, you are not covered. And what if you don't want the State of Florida to change your will?

Your Pretermitted Spouse After Getting Married

The law in Florida provides that if you already have a will then you marry, your new spouse will inherit a share of your estate even if you do not update your will. Under the law, this means your spouse will inherit at least half of your estate even if you have children with another person, and even if in your will, you left everything to those children. This is the "Pretermitted Spouse" rule. (Pretermitted means someone who was unintentionally omitted or forgotten, here, your spouse from your estate plan.)

Circumventing the Law

In a few situations, this change in your plan does not take place automatically. First, your new spouse can waive this change by a prenuptial (or postnuptial) agreement. Second, if the person you marry is already provided for in your will, then that provision will still stand. Finally, if your will states specifically that you do not make a provision for that person, then this will stop the pretermitted spouse rule from changing that. In any of these scenarios, though, your intentional act is required.

What to Do After Saying "I Do"

If you do not want the Florida law to decide what happens to your estate, then you should meet with an estate planning attorney and update (or newly draft) your will. But even if you are happy with how Florida directs the distribution of your property, you should still update (or create) your estate plan. Remember: and estate plan is not only a will. Now that you're married, you might want to assign your new spouse as your agent under your power of attorney or as your surrogate health care decision maker.

Categories: Wills

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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