Tallahassee, FL asked in Estate Planning and Probate for Florida

Q: Can a new will override a spouse's rights upon the other's death?

My parents are still married but have been separated (not legally, sold their home previously and now live in different counties and own their own homes) but have will's in place from many years ago. My father does not want his estate going to my mother upon his death and wants it distributed among the adult children. Do they have to be divorced to ensure this or would simply a new will override the old one? I don't know what the spousal rights are in this case upon death. And yes, it makes sense for them to divorce but neither have bothered to proceed with it. They are still on good terms but we want to make sure his estate is handled how he wants without issues.

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2 Lawyer Answers
Barry W. Kaufman
Barry W. Kaufman
Answered
  • Jacksonville, FL
  • Licensed in Florida

A: Your dad should consult with his own attorney. You should not be involved because any legal advice that you pass along from a lawyer could be construed as you practicing law. If you are not a lawyer, practicing law is a felony. I know you want to help your dad; the best way to help is to review the internet for local attorneys and give him a list of 3 or 4 and let him make an appointment, etc.

Paul Cain
Paul Cain
Answered
  • Estate Planning Lawyer
  • Ponte Vedra Beach, FL
  • Licensed in Florida

A: Based on what you've provided here, the wills are likely still in effect. Your father should probably consult an attorney and execute a new will or establish a trust as quickly as possible. This will ensure his wishes are carried out as intended.

A will may be partially or completely revoked by operation of law in Florida. However, this form of revocation usually only takes effect through a subsequent marriage, divorce or annulment. Because your parents are still legally married, the wills are likely valid until they are revoked. Timing of the original wills may also come into play, however. Your attorney should clear this up relatively quickly, but you can read about pretermitted spouses in F.P.C. §732.310.

When writing a new will, ensure your father takes time to revoke the previous will in a manner recognized under Florida law. In addition to performing the act, your father will also need to have the intent to do so. Therefore, he should be of sound mind at the time he enacts the new will.

There are other issues to discuss with your attorney, which usually lead to a serious conversation about trusts. Often, people set up trusts along with living wills, guardianships (when applicable), and any needed powers of attorney at the same time.

Once they are all set up, you should review the estate plan with your attorney at least every three to five years. If not, unaccounted for property may have to be probated, which increases time and expenses on the family.

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