Florida’s Elective Share, A Prenuptial Agreement, and a Revocable Trust

The Florida case of Wilson v. Wilson combines Florida elective share rights with a prenuptial agreement and a revocable trust.  Ultimately, the prenuptial agreement wins.

In Wilson, the court considered the terms of a prenuptial agreement and the husband’s subsequently executed revocable trust.  The surviving spouse was denied her right to an elective share, because the right was waived in the prenuptial agreement, which was not amended by the revocable trust.

The Prenuptial Agreement Waives The Right To An Elective Share

A couple entered into a prenuptial agreement.  In the prenuptial agreement, each waived their right to an elective share.  However, the prenuptial agreement allowed the couple to make testamentary gifts to each other by will or codicil without invalidating the prenuptial agreement:

Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other. Either of the parties may elect to make a gift to the other by Will without invalidating this provision and may thereafter change or eliminate the gift by a codicil or another Will without in any way affecting the continued effectiveness of this Agreement.

Any changes to the prenuptial agreement had to be in writing and signed by both the wife and the decedent.

The Husband’s Revocable Trust Leaves The Wife Her Elective Share Amount

The husband then executed a will and created a trust.  In the trust, the husband directed the trustee to set aside:

as much property as is necessary to satisfy the wife’s elective share pursuant to Section 732.201, et seq., of the Florida Statutes, provided the requirements thereunder are satisfied and a timely election is filed.

Only the husband signed his will and his trust.

The Wife, As Directed By the Husband’s Trust, Files An Election To Take Elective Share

The wife filed a notice of election to take elective share.

Decedent’s son, and trustee of the trust, moved to strike the wife’s election to take elective share.

The probate court struck the election.  The trial court found that the prenuptial agreement:

  • permitted the parties only to give testamentary gifts by will or codicil (not by trust)
  • waived the wife’s ability to receive an elective share
  • could only be modified in writing with the signature of both parties

The Prenuptial Trumps The Trust = No Elective Share Amount

The Florida appellate court agreed with the probate court.  The appellate court held that the wife waived her right to an elective share, and that the husband’s trust did not modify the prenuptial agreement because it was not signed by the wife.  The court further stated that:

If the decedent intended to give the wife a testamentary gift, he could have done so by will or codicil without relying on an elective share and specifically the requirements of the elective share statute.

Therefore, even though the husband’s intent was to give his wife an amount equal to the elective share, the requirement that the wife actually elect to take an elective share was the fatal flaw.  The prenuptial agreement waived the wife’s right to an elective share, and she was prevented from pursuing it, despite the language in the Trust.

The result in Wilson is really unfortunate.  The husband wanted his wife to have property in the amount of her elective share.  By focusing on the mechanism (obviously flawed) for how the wife was to receive her bequest, the court ignored the husband’s intent and rigidly focused on the prenuptial agreement, which neither the husband, nor the wife, wanted to control the outcome.  Under the court’s logic, the result could have been different if the wife had just signed the trust, because then the prenuptial could have been considered modified.


Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Jeffrey Skatoff Esq

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

Hourly & Contingency Fees Available

AV Rated Martindale Hubbell


(561) 842-4868

Complete Guide to Florida Probate

Opening the Probate Estate / Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights
beneficiary witness will Oklahoma
Closing the Probate Estate
Probate Litigation and Will Contests
Florida Probate Quick Guides

Jeffrey Skatoff’s

Complete Guide to Florida Probate

Opening the Probate Estate - Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights