The increase in second marriages with children from a prior relationship often causes the problem of “unintentional disinheritance”. The way it works is that when one spouse dies, depending on several factors, most of the marital assets automatically go to the surviving spouse. When the surviving spouse dies, those same assets go to his/her children thereby “disinheriting” the predeceased spouse’s children. Even if the first spouse to die has a will, Florida law permits the surviving spouse to take an “elective share” of the deceased spouse’s assets thereby taking away the inheritance of the deceased spouse’s children. In addition, the surviving spouse is generally entitled to a “life estate” in the deceased spouse’s real property. This means that the surviving spouse can have the real property for the remainder of his/her life to the exclusion of the other children.

Having a valid and comprehensive Florida Prenuptial Agreement can correct this problem. With a premarital agreement, each spouse can maintain assets that are excluded from the marital estate and able to immediately be distributed to the deceased spouse’s children. The premarital agreement waives the right of the surviving spouse to claim assets to the exclusion of the children.

If you are considering marrying and have children from a prior relationship, you should explore whether a prenuptial agreement is right for you and your children. If you have questions regarding a prenuptial agreement, please contact Wade P. Luther, Esq. at (407) 835-9900 or contact him at: Contact Here