Wilson v. Wilson

Wilson v. Wilson, 279 So.2d 160 (Fla. 4th DCA 2019)

This decision deals with whether subsequent to executing a prenuptial agreement, language in a decedent's trust directing the trustee to set aside "as much property as is necessary to satisfy the Wife's elective share" constituted a modification of the prenuptial agreement such that the wife could then elect to take her elective share. The Court found that it did not.

The prenuptial agreement contained a clear waiver of the elective share. It also provided that the agreement could only be modified in writing, signed by both parties. The agreement allowed the couple to make testamentary gifts to each other without invalidating the agreement. 

Following the decedent's death, the wife filed a notice of election to take her elective share in accordance with the trust. The Court held that the prenuptial agreement contained a clear and unambiguous waiver of the elective share. The creation of the trust did not modify the agreement because it was not signed by both parties. Had the husband intended to give the wife a testamentary gift, he could have done so without relying on the elective share and the requirements of the elective share statute. Thus, it was proper for the trial court to strike the wife's election to take elective share.

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