Probate, trust, guardianship and inheritance litigation
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Is a Marital Agreement Truly Unambiguous Under Florida Law With a Dissent?

By:  Jeffrey Skatoff, Esq.

A basic rule of contract interpretation is that unambiguous contracts are interpreted as a “matter of law” by the Court hearing the contract dispute.  Only if the Court holds that the contract is ambiguous will evidence of the parties’ intent be considered or other additional factors.  A recent Florida probate dispute involving a marital agreement holds that the marital agreement is unambiguous with a plain meaning, yet one judge disagreed, writing a forceful dissent.

In Haskin v. Haskin, 3D21-2180 (3rd DCA 2023), the Husband and Wife entered into a marital agreement in connection with a divorce.  The language at issue stated as follows:

The Husband agrees to promptly make and execute a Last Will and Testament containing such provisions as he may deem proper except that such Will shall contain a provision providing for the distribution of not less than 50% of his net estate to be divided equally among all of the Husband’s then living children. The term “children” as used hereunder shall include both natural and adopted children of the Husband. The provisions of this article are not to be deemed to require the Husband to include as such beneficiaries any children other than the children of the Husband and Wife but the provisions hereof permit such inclusion at the option of the Husband.

The Husband made a will leaving his estate as required to his four children.  Later, the Husband remarried, had another child, and made a new will disinheriting three of his children, who brought suit.  The agreement, however, was poorly drafted, in that it only required the Husband to “make a will” in favor of the four children, with no language making that will irrevocable or preventing the Husband from making a new and different will in the future.  In determining that the unambiguous language implied, and therefore required, a bequest of one half of the estate to the four children, the Court reasoned as follows:

We determine no ambiguity exists and the provision at issue can only lead to one interpretation-fifty percent of Eugene’s estate must be divided equally among Cindy, Lee, Richard, and Michael. That the provision contains no express language of irrevocability doesn’t change this analysis. That isn’t to say that the parties couldn’t agree to a provision whereby the settlor would have been free to amend subsequent wills; they just didn’t do that here. We know that because we are required to read the sentence at issue within the context of the entire agreement.

After the sentence requiring Eugene to execute a will splitting 50% of his estate equally among his four children with Judith, the agreement explicitly contemplates the possibility of Eugene having future offspring. Accordingly, the parties contracted for the fact that additional, future offspring could be added to the will at Eugene’s discretion, entitled to split the 50% share pro rata with the existing children. If we were to agree with Frances’ interpretation, we would be committing two sins of contract interpretation- creating an ambiguity where none exists and rendering the provision allowing Eugene to split the 50% share with future children meaningless. In other words, if Eugene had the unfettered right to amend his will and remove Judith’s children, that sentence allowing additional children to be added would be, at best, mere surplusage, or, more likely, create an ambiguity where none exists.

A forceful dissent cam to the opposite conclusion, reasoning as follows:

I disagree with the majority’s interpretation of Article XIII(B). In the first sentence of the Settlement Agreement, Eugene was only required to “promptly make and execute a Last Will and  Testament containing such provisions as he may deem proper except that such Will shall contain a provisions providing for the distribution of not less than 50% of his net estate to be divided equally among all of the Husband’s then living children.” (emphasis added). He was not required to “make, execute, and maintain,” such a will.


Nonetheless, the third sentence does not somehow require Eugene to maintain the will that he “promptly ma[de] and execute[d]” following his divorce from Judith that satisfied Article XIII(B).  Basically, after he made and executed the initial will, there was nothing in the Settlement Agreement that stopped him from later revoking that initial will and entering into a subsequent will with provisions of his choosing.

The dissent’s reasoning makes the contract illusory, in my opinion.  What is the point of the agreement if the Husband could disinherit his children the very next day, yet still be in compliance with the agreement?  Does the dissent actually believe the wife agreed to that?  The dissent was not wrong, however, in highlighting another reading of the agreement, yet would have had the better opinion, more grounded in Florida law, to have held that there two possible interpretations of the agreement, the agreement is therefore ambiguous, so an evidentiary hearing is necessary to determine the parties’ intent.

The drafting flaw in the marital agreement, which is seen in many contracts, is to reference specific acts that are to be taken, rather than actual results.  Had the marital agreement said something along the line of “Husband shall bequeath at his death, by will, trust, or otherwise, not less than one-half of his assets as determined using Federal estate tax principles, to his four children,” the parties would have agreed on the intended result, rather than the steps to achieve the result.  (Of course such language would not necessarily prohibit lifetime gifting of assets, but that issue is for another time.)  Given the complexity of life, an agreement based on steps to be taken rather than results to be achieved can end up in litigation, or worse – the required steps were taken, but the intended results not achieved.  (The point of the agreement was not about making wills but about mandating a minimum bequest to the children.)  The majority here in Haskin clearly ended up with the right result, in that how could the parties intent be anything other that to leave not less than one-half of the estate to the children.  But the next litigant with action-based language rather than results-based language might not be so lucky.

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

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

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