A premarital agreement is intended to settle in advance issues that arise when you no longer want to remain married. On the other hand, the legal documents pertaining to death assume the decedent has maintained a good relationship with heirs and wants to provide for their futures. These two separate and distinct legal issues seldom affect each other in any way — as long as your premarital agreement contains no language that blends them.
The Florida Uniform Premarital Agreement Act specifically states that it does not apply to the provisions of probate code. However, the probate code does contain allowances for waiver of spousal rights. When provisions are made within a premarital agreement, a surviving spouse who was still married to the decedent at the time of death can lose full or partial rights in probate decisions, such as:
- The automatic legal right to a percentage of property that the courts apply in the absence of a will (known as a pretermitted share)
- Homestead rights
- Family allowances
- Preference in appointment as a personal representative of the estate
If you have a successful and happy marriage up to the time your spouse passes, you would likely regret waiving these rights due to a premarital agreement. Still, a Boca Raton family law lawyer can help you determine the times when waiving your rights within a premarital agreement might be essential to protecting your heirs. For example, both spouses may want to protect the inheritance rights of their children before entering into a second marriage.
Before entering into a marriage, seek legal advice to make sure you address any complex circumstances that can lead to unwelcome surprises down the road. A free initial consultation with an attorney from Feldman & Schneiderman, P.L. can be an important first step to protecting the entire family.