We are married and a prenuptial agreement is in force and I die; would the prenuptial agreement be still enforceable? I would like my estate to go to my kids.
It depends...Did your prenuptial agreement discuss what happens when one of you dies? Did it waive your spouse's right to claim to take an elective spousal share of your estate, and other rights that a spouse gets under Florida Law? If your answer is "yes" then you, or more correctly, your children are likely protected. If not, then your spouse can elect to take a third of your estate even if you shut the spouse out in your will. A spouse and children also share, depending on a number of factors, in a parent/spouses estate in the absence of a will.
If you have concerns, you should have the prenuptial agreement reviewed. With consent, if the prenuptial is silent on these areas, you could ask your spouse to execute a postnuptial agreement. If your spouse is reticent to do so, you could sweeten the deal by offering to get a life insurance policy covering your life where your spouse is the beneficiary. Term policies are usually not very expensive, and this way your spouse would be assured of getting something if you should die first.
The best option is to just make sure you outlive your spouse....if only we could control that.
Best of luck and health to you,
Cindy Vova
Law Office of Cindy S. Vova, P.A.
8551 West Sunrise Blvd., Suite 301
Plantation, FL 33322
info@vovalaw.com
954-316-3496
A prenuptial agreement is not invalidated by the death of one of the parties. Many prenuptial agreements contain clauses waiving or altering various statutory marital rights that accrue upon the death of one of the spouses. For example, a surviving spouse has a statutory right to a portion of the deceased spouse's estate, even if the deceased spouse's will directs the estate to be distributed elsewhere. Unless the prenuptial agreement contains a waiver of that statutory right, it will control over contrary provisions in a will. Sometimes, a prenuptial agreement that contains a waiver of statutory marital rights, provides for a surviving spouse to receive a particular asset, or a monetary distribution, from the deceased's spouse's estate. That, too, will control over contrary provisions in a will.
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