QUESTION
What are the legal rights of a spouse who just discovered his/her recently deceased mate never divorced the first spouse?
Asked on Jan 31st, 2012 on Estate Planning - Florida
More details to this question:
A friend passed away last week without a will. It was revealed to the current spouse ("B") after the friend's death, that the friend was never legally divorced from spouse "A", even though the friend and spouse A were separated for 22 yrs. The deceased friend and spouse B have been together 7 years, and spouse B assumed they were legally married for the last 3 years, until the revelation of bigamy surfaced. Spouse A has verbally given consent for spouse B (who has filed for Personal Representative of the deceased's estate) to handle all legal/financial affairs of the deceased. However, there is opposition from the deceased's parents. What legal rights if any does spouse B have to continue handling the affairs of the deceased?
4 ANSWERS
Banking Attorney serving Miami, FL
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The Barrister Firm, P.A.
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You may still be the personal representative of the Estate so long as you meet the statutory requirements. However, our marriage is void and you are not considered an heir for purposes of inheritance (i.e. distribution of assets). It would also appear that the former spouse may be entitled to a portion of the decedent's Estate.
Answered on Feb 23rd, 2012 at 10:51 AM
Probate & Trust Attorney serving Fort Lauderdale, FL
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Robert J. Slotkin
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The surviving spouse is entitled to preference in choosing a Personal Representative but she can always sign a consent to having someone else (Spouse B) be the P.R. and the courts will honor it. I also suggest that she disc laim her right as surviving spouse to his property, if there is any. That would benefit his kids and not spouse B, however. Spouse A can simply assign her bequests to Spouse B if she is cooperative.
Answered on Feb 22nd, 2012 at 10:50 AM
Immigration Law Attorney serving Hialeah, FL
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Hernandez & Suarez, PL
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Absent a will and appointment of personal representative by the deceased, all legal heirs need to consent to the appointment of the PR. Right off the bat, the spouse B does not have any rights as the second marriage is null and void-it is not legally enforceable. The heirs to the estate shall be the real espouse and any children. If the prior spouse and children agree to the appointment of personal representative, then spouse B can be the personal representative. The parents of the deceased are not heir to the estate absent a will in this case and have no say in nominating the PR. will not be valid.
Answered on Feb 21st, 2012 at 2:51 PM
Probate & Trust Attorney serving Coral Springs, FL
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Richard J. Kaplan, P.A.
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I can't answer all aspects of the problem, but the main point I can. Since the decedent was married when they married Spouse B, the marriage to Spouse B was not legal (void ab initio) and Florida does not have common law marriage. I had this happen once with a client of mine years ago in that the client got remarried before the final judgment of divorce. So they had to get married again to Spouse B after the divorce was final to make it legal. If Spouse B is a Florida resident, they can qualify to be the personal representative, but the parents would have better standing to serve and could request it. What will happen will depend upon the Judge, and any other opinions would require in depth research.
Answered on Feb 21st, 2012 at 1:48 PM