Beware the Forgotten Spouse!

This post is based on a real case. It is an excellent example of how delay and a failure to plan can hurt you and your family.

Joe and Sally were an older couple and both had children from previous marriages. They married after knowing each other for about one year. Neither one of them was “wealthy” and they did not bother with a prenuptial agreement. In fact, Sally deeded two pieces of real property that she owned to herself and Joe creating tenancies-by-the-entireties in the properties. However, the marriage did not work out and after several years Joe returned to his home in Virginia.

Sally died fifteen years later still married to Joe. She never bothered to get a divorce or a post-nuptial agreement. Her will left everything she owned to her only son, Charlie. At the time of her death, she owned the two real pieces of property as tenancies-by- the-entireties with Joe and approximately $300,000.00 in CDs, checking accounts, and savings. All of the $300,000.00 was either payable on death to Charlie or in a joint account with him. The real properties were worth about $250,000.00. Sally and Charlie lived on one of the parcels of real property, which was Charlie’s only home. She hadn’t seen or spoken to Joe in fifteen years. They hadn’t even lived in the same state during those years. Upon hearing of Sally’s death, Joe (being no fool) immediately sought counsel and filed a claim for an elective share. He also laid claim to the two pieces of real property.

Under Florida law, Joe became the sole owner of the two pieces of real property when his “wife” died. Joe claimed an elective share in Sally’s estate. See, Fla. Stat. §732.201 et seq. Because of the elective share allowed the surviving spouse of a spouse who dies domiciled in Florida, Joe will also receive thirty percent of the funds from the CDs, checking accounts, and savings even though they were all co-owned with or payable on death to her son Charlie. In other words, Joe gets two valuable pieces of real estate worth $250,000.00 plus $90,000.00 in cash for a total of $340,000.00. Sally’s only son Charlie, the sole beneficiary of her will, receives $210,000.00 and loses his home. Somehow I don’t think that is what Sally intended to happen. I’m sure she intended for Charlie to continue living in their home and to receive all of her money, as her will provided.

The moral of this story is to not leave any loose ends. Sally could have avoided this problem by divorcing Joe when he moved to Virginia Sooner would have been better than later so as to assure a “short term marriage.” Alternatively, she and Joe could have had a prenuptial before they married or a post-nuptial agreement afterwards. Once they were married, the only way to avoid his claim to an elective share would be a trust unless he voluntarily waived his rights in writing, which is what a nuptial agreement helps with. She should never have gifted one-half of her real property to Joe. Once she did that, there was no way to undo it without Joe’s cooperation. In my experience, once such a gift is given, it is rarely, if ever, freely returned and always ends up costing the donor. For the sake of your loved one, don’t forget that long gone spouse!

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2008

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3 thoughts on “Beware the Forgotten Spouse!

  1. Same question here as in the Fulk example. Once the husband leaves Florida and establishes his residence or domicile in another state, such as Virgina, he is no longer a resident of Florida. AS a nonresident of Florida, does’t he lose the immunity from creditors for the Florida tbe property. Are there any cases supporting the proposition that the immunity from claims of non-joint creditors is an immunity available to nonresidents of Florida who have a tbe interest in Florida real estate?

  2. The statute governing the elective share of a surviving spouse says: “The surviving spouse of a person who dies domiciled in Florida …” It is the deceased spouse who has to die in Florida in order for the surviving spouse to claim an elective share. The elective share does not really have anything to do with exemptions from creditors, which is another issue. The relevance of tenancies-by-the-entireties property here is that it automatically belongs to the surviving spouse. The exemption of entireties property from the creditors of one spouse has nothing to do with whether both spouses are Florida residents. It arises because of the nature of entireties property. Each spouse has a right to the whole property so no creditor of either spouse alone can deprive the non-debtor spouse of that right to the whole.

  3. Pingback: You’re Not Married Until The Paperwork Is Finished « The Harry Thomas Hackney Florida Law Blog

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