When Marriage Comes After the Will: Florida’s Protection for Newly Married Spouses
Key Takeaways: A pretermitted spouse under Florida law is a surviving husband or wife who married the testator after the will was signed and was not provided for in it. Under Fla. Stat. § 732.301, that spouse is generally entitled to the same share he or she would have received if the decedent had died intestate, which can be the entire estate or one-half depending on whether the decedent left descendants outside the marriage. The claim is generally not a will contest; it accepts the will as valid, but the statutory share is carved out of the probate estate and can reduce what the will’s beneficiaries actually receive. Three exceptions can prevent the claim: a written waiver or marital agreement executed before two subscribing witnesses under Fla. Stat. § 732.702, a provision for the spouse in the will, or language disclosing an intent not to provide for the spouse. The pretermitted share differs from the elective share, which generally applies regardless of when the will was executed but must be affirmatively elected within statutory deadlines, and a marriage procured by fraud, duress, or undue influence may bar spousal rights altogether. For Palm Beach County blended families, reviewing and updating a will after a marriage can be one of the most effective ways to help keep an estate plan intact.
If you married after signing your will, Florida law may treat your spouse very differently than you assume. A pretermitted spouse is a surviving husband or wife who married the testator after the will was executed and who was not provided for in that document. Under Florida Statute § 732.301, that spouse may generally be entitled to receive the same share he or she would have received had the decedent died without a will, subject to three statutory exceptions. For Palm Beach County families, especially those blending households later in life, this rule can quietly rewrite an estate plan built over years.
If a recent marriage, remarriage, or engagement has changed your family picture, the estate planning attorneys at Moran Law can help you review and update your documents before a court has to interpret them. Call (561) 779-2029 or contact us now to schedule a confidential consultation about your will.
How the Pretermitted Spouse Statute Actually Works
Florida’s rule is stated in the Probate Code and generally applies statewide, including the Fifteenth Judicial Circuit serving Palm Beach County. Section 732.301 provides that when a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share equal to what he or she would have received if the testator had died intestate, unless: provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement; the spouse is provided for in the will; or the will discloses an intention not to provide for the spouse. The statute applies to the probate estate passing under the will, and the share is generally satisfied under Florida’s abatement rules.
The doctrine is generally not a will contest, and that distinction matters. A pretermitted spouse claim typically does not allege the will is invalid or that anyone lacked capacity or exerted undue influence. Instead, it accepts the will as validly executed while asserting a statutory share carved out of the estate, which can reduce devises to other beneficiaries. That is why proper drafting, rather than litigation, is often the better path for families who want their documented wishes honored.
Timing is frequently the threshold question. Courts generally compare the date the will was signed to the date of the marriage. If the will predates the marriage and says nothing about the new spouse, the statute may apply. If the will was signed after the wedding, the doctrine generally does not apply, though other spousal protections such as the elective share and homestead rights may still be available.
What a Pretermitted Spouse Florida Will Claim Is Worth
The size of the share generally depends on who else survives the decedent. Because the statute borrows from Florida’s intestacy rules in § 732.102, the surviving spouse’s portion generally turns on whether the decedent left descendants and whether those descendants are shared with the spouse. Readers navigating a broader question about what happens when there’s no will in Florida will recognize the same framework at work here.
| Family Situation at Death | Surviving Spouse’s Intestate Share |
|---|---|
| No surviving descendants of the decedent | The entire intestate estate |
| All surviving descendants are shared with the spouse, and the spouse has no other descendants | The entire intestate estate |
| One or more of the decedent’s descendants are not descendants of the surviving spouse | One-half of the intestate estate |
Blended families in Palm Beach County frequently land in that third row. A remarried parent with children from a prior relationship may intend those children to inherit a family home or business in full. If the will predates the remarriage and doesn’t address the new spouse, one-half of the probate estate may pass to the spouse instead, regardless of private intent. Homestead property is treated under separate constitutional and statutory rules and may not pass the same way.
The Three Exceptions That Prevent an Omitted Spouse Claim
Florida law recognizes three routes by which the statutory share may not apply, and each depends on the documents themselves. These exceptions are among the practical tools estate planners use to make testamentary intent enforceable rather than debatable.
- A written waiver or marital agreement. Under Fla. Stat. § 732.702, a surviving spouse’s rights to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative may be waived, wholly or partly, before or after marriage, by a written agreement signed before two subscribing witnesses. No disclosure of assets is required for a waiver signed before marriage, but one signed after marriage generally requires fair disclosure of the other spouse’s estate.
- A provision for the spouse in the will. If the instrument already leaves something to the person who later became the spouse, courts may find the statute satisfied depending on the language used.
- An expressed intention not to provide for the spouse. A will disclosing intent to omit a future spouse, or made in contemplation of the marriage, may fall outside the statute. A trust or life insurance policy may also qualify when the record supports intent that it stand in lieu of a testamentary gift.
💡 Pro Tip: Vague language rarely holds up. A clause referring generally to "any future spouse" is often weaker than one naming the individual and stating the reason for the disposition, and courts may consider surrounding circumstances when text is ambiguous.
When a Marriage Itself Is Challenged
Florida law also addresses marriages obtained improperly. Under Fla. Stat. § 732.805, a surviving spouse found to have procured the marriage by fraud, duress, or undue influence may not be entitled to rights that inure solely by virtue of the marriage, including inheritance as a pretermitted spouse, elective share or family allowance, preference in appointment as personal representative, or inheritance by intestacy, homestead, or exempt property. That bar generally does not apply if the decedent and spouse voluntarily cohabited with full knowledge of the facts, or if both spouses otherwise ratified the marriage.
A challenge under that provision must generally be brought within four years after the decedent’s date of death. Deadlines of this kind are often interpreted narrowly, and no extension should be assumed automatic. This civil probate deadline is generally distinct from other probate filing periods, and whether it can be tolled is fact-dependent.
How the Elective Share Differs From Pretermitted Rights
These two protections are often confused, but they generally solve different problems. The Florida elective share statute gives the surviving spouse of a person who dies domiciled in Florida the right to a share of the elective estate, generally 30 percent, which includes many non-probate assets. That right generally exists regardless of when the will was signed and whether the spouse was mentioned, but it must be affirmatively elected within statutory deadlines.
The pretermitted share, by contrast, generally applies only where marriage followed will execution and reaches only the probate estate. The elective share sits within Part II of Chapter 732 of the Florida Statutes (ss. 732.201-732.228), while the pretermitted spouse protections sit within Part III of Chapter 732 (ss. 732.301-732.302); together, these provisions reflect the Legislature’s broader policy of protecting spouses from unintentional or deliberate disinheritance. A surviving spouse may need to evaluate which protection produces the better result, and the analysis is genuinely fact-sensitive.
Where Probate Procedure Fits In
Substantive rights are only half the picture. These claims are generally raised and adjudicated in probate proceedings governed by the Florida Probate Rules, which are periodically revised. Practitioners follow updates such as those reported in amendments to the probate rules because filing requirements and notice obligations can affect how and when a claim is presented.
Practical Steps After a Palm Beach Marriage
Reviewing your will after a wedding can be one of the most effective preventive measures. Estate planning after marriage should generally include confirming execution formalities, updating beneficiary designations on non-probate assets, reconfirming guardian nominations for minor children, and documenting the reasoning behind any unequal distribution. A Palm Beach wills attorney can help align each document so the plan reads consistently.
💡 Pro Tip: Beneficiary designations on retirement accounts and life insurance generally pass outside the will entirely, though some may still be counted in the elective estate. Updating the will alone may leave a significant gap in your plan.
Frequently Asked Questions
1. Does a pretermitted spouse have to file anything in probate court?
Generally, the surviving spouse may need to assert the claim within the probate proceeding rather than receiving the share automatically. Procedural requirements and timing depend on the posture of the estate, so prompt review with counsel is advisable.
2. Can a postnuptial agreement signed years into a marriage still waive these rights?
Under Fla. Stat. § 732.702, a waiver may be executed before or after marriage, provided it is in writing and signed before two subscribing witnesses. A postnuptial waiver generally also requires fair disclosure of the other spouse’s estate, and enforceability depends on the agreement’s terms and circumstances of execution.
3. Does the pretermitted share apply to trust assets?
The statute speaks to the estate of the testator, so assets that pass outside probate are generally treated differently. In some circumstances a trust or life insurance benefit may qualify as a provision made for the spouse in lieu of a testamentary gift.
4. What if the will was written in anticipation of the marriage?
If the will discloses an intention not to make provision for the spouse, or reflects that it was made in contemplation of the marriage, the statute may not apply. Courts examine the language of the instrument closely, and outcomes vary with the facts.
5. Do these rules differ in Palm Beach County?
Generally, no. Chapter 732 is a statute of general application that governs Florida circuits uniformly, including the Fifteenth Judicial Circuit, though local administrative practices and filing procedures can vary.
Protecting Your Intent Before It Becomes a Dispute
Florida’s pretermitted spouse rule exists to help prevent accidental disinheritance, not to override thoughtful planning. When a will predates a marriage and stays silent, the surviving spouse may take an intestate share of the probate estate that could reach the entire estate or one-half of it, depending on the family structure. The exceptions under Fla. Stat. § 732.301 are available, but they generally require deliberate drafting or a properly witnessed marital agreement. Every estate turns on its own facts, and this overview is not a substitute for advice about your situation.
If your marital status has changed, or you want confidence that your documents reflect your true wishes, the team at Moran Law is ready to help. Call (561) 779-2029 or request a consultation to have your will reviewed by a Palm Beach estate planning attorney.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.
