November 4, 2011
Authored by: Luke Lantta
It’s not uncommon for couples to divorce and remarry each other or separate and contemplate divorce but stay married. If a couple does reconcile, they probably want to make sure they review and clean-up any estate planning done during the separation or after the divorce but before the remarriage.
In Steffens v. Evans, a Florida Court of Appeals ruled that a wife waived all of her beneficial rights under her husband’s will by executing a post-nuptial agreement after the husband had executed his will.
On January 4, 2002, Jeffrey E. Steffens executed his last will and testament. At the time he executed his will, Jeffrey was married to Andrea S. Steffens, and he named her as a substantial beneficiary of his estate. Some time after, Jeffrey and Andrea contemplated separating, and on June 6, 2007, they entered into a Post-Nuptial Agreement. When Jeffrey died almost two years later, however, Jeffrey and Andrea were still married.
Following Jeffrey’s death, Andrea filed a petition for administration. The probate court entered an order admitting the will to probate and appointing Andrea as the personal representative. Denise Evans, Jeffrey’s former wife, in her capacity as parent and natural guardian of Jeffrey’s minor children, filed a petition to determine beneficiaries, contending that the Post-Nuptial Agreement contained a broad, reciprocal waiver in which Andrea waived all rights to Jeffrey’s separate property and estate. The probate court agreed, and the court of appeals affirmed.
The Post-Nuptial Agreement between Jeffrey and Andrea closely tracked the applicable Florida statutory language regarding waiver of “all rights.”
Specifically, Florida Statutes Section 732.702(1) provides that a surviving spouse may waive his or her beneficial rights in the other’s estate and “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language . . . 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.”
The Post-Nuptial Agreement, in turn, provided that “[e]ach party freely and voluntarily irrevocably waives all rights in the earnings, property and estate of the other as well as any right to alimony, support or any other monetary relief in the event of a dissolution of marriage or death, except as specifically provided herein.” The Post-Nuptial Agreement also provided that “[e]xcept as otherwise specifically provided in this Agreement, each party waives, relinquishes and releases all right, title and interest and to any and all of the other party’s separate property to which each party may otherwise be entitled as the spouse of the other party, widow or widower, heir at law, next of kin or distributee, upon or by virtue of a termination of the marriage of the parties by death, divorce dissolution of marriage, annulment or other-wise.” What’s more, the Post-Nuptial Agreement actually cross-referenced the applicable statue: “The waiver contained herein is to be broadly construed pursuant to Section 732.702, Florida Statutes.”
Because Jeffrey’s 2002 will was executed before the parties’ 2007 Post-Nuptial Agreement, the Post-Nuptial Agreement waived any benefits that would have passed to Andrea under the 2002 will.