Florida Surviving Spouse Did Not Waive Spousal Rights In Marital Settlement Agreement

In Merli v. Merli, a January 5, 2022 opinion from the Florida Fourth District Court of Appeal, the Court determined that the spouse of a decedent who died intestate in the midst of their divorce proceeding did not waive spousal rights in the partial marital settlement agreement and had intestate spousal rights in the estate.

The Facts of Merli v. Merli

Decedent was survived by Donna Merli, his surviving spouse, and Richard Merli, his brother.   Decedent died intestate while his divorce proceeding with his wife was pending.  Before his death, Decedent and his wife had entered into a partial marital settlement agreement.

Partial Marital Settlement Agreement

The partial marital settlement agreement divided certain assets, addressed alimony, and provided for the sale of the marital home, but did not contain an agreement to change the spouse’s ownership interest in the marital home.

The family court entered an order adopting the partial marital settlement agreement, but had not entered a final judgment of dissolution of marriage at the time of the husband’s death.

Competing Petitions To Serve As Personal Representative

Richard (decedent’s brother) petitioned the Florida probate court to serve as the personal representative of decedent’s estate.  He asserted that he had priority to serve as decedent’s brother and heir-at-law, and requested that the court, pursuant to the marital settlement agreement, find that the marital home was owned as a tenancy in common between the decedent and the wife.

The surviving spouse counter-petitioned to serve as personal representative on the basis that she was the surviving spouse and the sole beneficiary of decedent’s intestate estate.  The wife moved for summary judgment arguing that the marriage had never been dissolved and that the family court had dismissed the dissolution proceeding upon decedent’s death.

The Florida probate court granted the wife’s motion and appointed the wife as the personal representative of the decedent’s estate.  The court found that the spouse did not waive her rights as surviving spouse under Florida law because the partial marital settlement agreement did not contain any language which could constitute a waiver of spousal rights pursuant to section 732.702(1), Fla. Stat. (2019).

Section 732.702, Fla. Stat. And Waiver Of Florida Spousal Rights

Section 732.702, Fla. Stat. (2019) addresses the waiver of spousal rights, including intestate rights, and states:

(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law.… Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.

(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage.…

(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

Decedent’s brother argued that the spouse had waived her spousal rights in the partial marital settlement agreement, relying on the phrase “complete property settlement” in section 732.702(1) and on Snow v. Mathews, 190 So. 2d 50 (Fla. 4th DCA 1966) to conclude that the couple’s settlement was evidence of spousal waiver.  Read about Florida surviving spouse rights.

Snow v. Mathews

The Florida appellate court determined that the brother’s reliance on Snow  was misplaced for three reasons.

First, the subject marital settlement is not a complete settlement as it did not clearly, specifically and explicitly settle all matters of dispute between the parties.

Second, Snow did not address a surviving spouse’s waiver of intestate rights pursuant to section 732.702(1).

Third, in Snow, the married couple’s separation agreement – which included all of their jointly owned property and the marital home – was detailed, specific, and explicitly provided, “‘[U]pon the execution of this agreement each of the parties shall be tenants in common’ … in the described properties, and the agreement shall be binding upon their heirs and personal representatives.”

No Divorce and No Waiver Of Florida Spousal Rights In Partial Marital Settlement Agreement

The Court determined that decedent’s wife was indeed his surviving spouse and had not waived Florida spousal rights by way of the partial marital settlement agreement, stating:

Here, the dissolution proceeding remained pending at the time of the decedent’s death. Thus, when the decedent died, the family court properly dismissed the dissolution proceeding without entering a final judgment. See Marlowe v. Brown, 944 So. 2d 1036, 1039-40 (Fla. 4th DCA 2006) (“The dissolution of marriage action terminated with the death of the husband and the dissolution judge should have dismissed the case upon the wife’s motion.”) (citations omitted). As a result, the decedent’s death left the wife in “[t]he legal position of one whose marriage was terminated by death, and not by a final judgment.” Marlowe, 944 So. 2d at 1040. The partial settlement agreement’s terms do not amount to a binding final decree. Moreover, nothing in the subject partial settlement agreement evinces an intent by either party to waive their intestate rights.

The Court affirmed the Florida probate court’s order granting final summary judgment which recognized the spouse did not waive intestate spousal rights and appointed the wife as personal representative of the decedent’s estate.

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Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights
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