Posted by Nydia Streets of Streets Law in Florida Prenuptial Agreements

How does a Florida prenuptial agreement affect a spouse’s estate after the spouse’s death? Florida prenuptial agreements often contain clauses which control how each spouse’s property and estate is divided at death. One issue is whether or not a spouse may serve as a personal representative of the other spouse’s estate. This was highlighted in the case Sant Angelo, et. al. v. Sant Angelo, 6D23-658 (Fla. 6th DCA September 22, 2023).

In this case, a husband and wife executed a prenuptial agreement. The agreement contained the following pertinent clauses:

2.04. The parties do hereby further admit and acknowledge that each

fully understands the issues addressed in this agreement and any legal

rights they may be waiving as a result of entering into this agreement,

including, but without limitation, . . . the right of a surviving spouse to

act as personal representative of a deceased spouse estate for a fee . . ..

3.01. Except as herein provided, the parties do hereby covenant and

agree with each other that they will either during their lifetime nor after

the other parties death, take, claim, demand, or receive, and do hereby

waive and release all rights, claims, titles, and interests, actual,

inchoate, or contingent, at law and in equity which they might, by

reason of their marriage, acquire in each others property or estate.…

(emphasis added)

3.07. Each party consents that the estate of the other may be disposed

of by will or codicil to any heirs of the other party, or in absence of a

will or codicil, the estate of each party shall descend to the heirs of that

party as if the marriage had taken place, except that Daniel shall devise

to Carla the marital Home in Lorida and the surrounding 5 acres.

The husband died after the parties were married for 16 years. Since he died without a will, his wife petitioned to be appointed the administrator of his estate. The husband’s children objected, arguing she waived her right to serve in this capacity via the prenuptial agreement. The trial court disagreed with the children and appointed the wife. The children appealed.

The appellate court first noted “Section 733.301(1), Florida Statutes (2022), sets forth the order of preference which shall be observed in the appointment of a personal representative. When a decedent dies intestate, as was the case here, the surviving spouse ranks first in the statute’s order of preference for appointment as the personal representative. § 733.301(1)(b), Fla. Stat. (2022). But this right, like most, can be waived by contract.”

The appellate court reversed the trial court’s order, reasoning “Considering section 732.702, the parties agreed, and the trial court found, that paragraph 3.01 was a general waiver of ‘all rights,’ which necessarily included the right of a surviving spouse to act as personal representative. Despite this recognition, the trial court reasoned that the general waiver found in paragraphs 2.04 and 3.01 was undone by paragraph 3.07, which it found to be a specific provision reinstituting the wife’s right to be treated as Decedent’s surviving spouse if he died intestate. This finding, however, reads paragraph 3.07 too broadly. Paragraph 3.07, at most, simply revives the wife’s right to take under the laws of intestacy. And the right to take a share of her husband’s estate is different in kind from the right to administer her husband’s estate. [internal citation omitted]. In other words, paragraph 3.07 never addresses the wife’s statutory preference for appointment as personal representative. Since paragraph 3.07 does not conflict with the portions of paragraphs 2.04 and 3.01 that waive the wife’s right to act as personal representative, the specific/general canon, which requires the presence of conflicting provisions, does not apply in this situation. [internal citations omitted]. As such, the trial court erred by applying that canon to find paragraph 3.07 revived the wife’s right to administer the Decedent’s estate as its personal representative.”

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