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January 19, 2024 at 03:05 PM
If this is your client’s first, second or third marriage, it would be beneficial for their financial advisor to suggest that they stop before setting the wedding date. Your client may want to consider the effect that the marriage will have on their estate.
Knowing what rights and interests a new spouse has in the client’s estate upon their death can be complicated. This can be especially true if the client or their new spouse has prior children or significant assets prior to entering the marriage.
Without legal advice, the client may be going into the marriage not knowing the financial repercussions that saying “I do” has on their overall estate. It is essential to have trust and estate counsel as well as family law counsel that can collaborate with you as the financial advisor to ensure that the client’s wishes are effectuated upon their death.
1. Understand a state’s spousal rights.
One of the most important ways to protect your client’s children and their inheritance is by having an understanding of the full extent to which their new spouse has rights to claims against any property in their estate.
For example, in Florida, homestead property has restrictions on a devise (or testamentary disposition of real property) that could override any provisions in a trust or will. There are also, of course, rights of a spouse in the event of a divorce that could be modified, limited or avoided by the execution of a prenuptial agreement.
2. Review the state pretermitted spouse statute.
By definition, a pretermitted spouse is a surviving spouse that has not been mentioned or accounted for in the decedent’s will, if the will was executed prior to the marriage.
In many states, including Florida, if the decedent dies without mentioning the surviving spouse in his or her will, upon election, the surviving spouse will receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died without any will at all.
3. Review the state elective share statute.
As spousal inheritance rights vary by state, it is important to review the law in your client’s state. An elective share statute allows a surviving spouse to avoid the provisions in your client’s will or trust, and take instead a statutory percentage of your client’s estate.
