Rubin on Probate Litigation

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 d...

Smith v. Smith , 232 So.3d 509 (Fla. 1st DCA 2017) This decision involves the question of whether a prenuptial agreement precluded the surviving spouse from seeking the removal of the co-personal representatives of the decedent spouse's estate.  The prenuptial agreement in question provided that the surviving spouse would "refrain from any action or proceeding to void or nullify to any extent the terms of any last will and testament or trust or testamentary substitute."   The co-personal representatives argued that the above provision prevented the surviving spouse from seeking their removal. The spouse argued that the provision did not affect her rights she later acquired through subsequently executed estate planning documents, and that the waiver provisions did not extend to the interest she acquired in her husband's estate when she was named an income beneficiary of the marital trust created under the terms of his last will executed after the marital agree...

Sudman v. O'Brien , 218 So.3d 986 (Fla. 2d DCA 2017), 2017 WL 1829479 This result in this decision should serve as a cautionary tale for all parties involved in litigation - the failure to properly respond to a request for admission will be treated as a deemed admission pursuant to Florida Rule of Civil Procedure 1.370(a), which could completely alter the disposition of a case.  Here, the surviving spouse sought to take her elective share from her husband's estate.  The trustee of her husband's trust objected to her election, and served a request for admission on the wife asking her to admit that she executed a prenuptial agreement with the decedent prior to her marriage.  The wife did not respond.  As a result, the trial court held that the request was deemed admitted, and granted the trustee's objection to her election to take the elective share. The Appellate Court upheld the trial court's decision.  It explained that Florida Rule of Civil Procedure ...

The Northern Trust Co. v. Shaw , --- So.3d --- (Fla. 2d DCA 2016) This decision deals with an interpretation of a surviving spouse's rights under a prenuptial agreement.  While the spouse argued that she was entitled to both $500,000 under the agreement and  other assets left to her by the decedent, the personal representative felt that she was only entitled to the $500,000, and the other assets left to her by the decedent should be taken into account in satisfying that amount. The Court, relying on North Carolina contract law, ultimately felt that the personal representative's interpretation was correct. The prenuptial agreement at issue stated that the wife would receive from the husband the sum of $500,000 from his estate.  It defined "estate" as his probate estate, any living trust created by him, as well as life insurance, individual retirement accounts, qualified and nonqualified deferred compensation plans and other assets that may pass by beneficiary ...