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Wilson v. Wilson

Florida Court of Appeals, Fourth District

August 14, 2019

MARILYN M. WILSON, Appellant,
v.
GREGORY P. WILSON, as Trustee of the Paul C. Wilson Living Trust and as Personal Representative of the Estate of Paul C. Wilson, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Victoria L. Griffin, Judge; L.T. Case No. 312017CP001128.

          Jordan R. Hammer of Ellis Law Group, P.L., Boca Raton, for appellant.

          E. Steven Lauer of Lauer Law, P.A., Vero Beach, for appellee.

          Levine, C.J.

         A married couple entered into a prenuptial agreement, waiving their right to an elective share but reserving the right to make testamentary gifts by will or codicil. Subsequently, the husband executed a last will and testament and created a trust agreement, directing the trustee to set aside "as much property as is necessary to satisfy the Wife's elective share" pursuant to the elective share statute. After the husband's death, the wife filed a notice of election to take elective share. The trial court struck the election.

         We are asked to interpret the language of the prenuptial agreement. Was the waiver of elective share in the prenuptial agreement modified by the creation of the trust agreement which requested the setting aside of property to satisfy the same elective share? We find that the language of the prenuptial agreement unambiguously waived the wife's elective share and that the trust agreement could not modify the prenuptial agreement under the terms of the prenuptial agreement itself and the applicable statute. As such, we affirm.

         Appellant and the decedent got married in 2011. Before their marriage, they entered into a prenuptial agreement. In the prenuptial agreement, the couple agreed to waive the right to an elective share:

Each of the parties does hereby and herewith release, waive and relinquish all rights that they may now have or may hereafter acquire in the property or estate of the other party by reason of their marriage, whether by way of dower, curtesy, elective share, family allowance, homestead, statutory allowance, pretermitted spouse statute, intestate share, community property, ERISA or any other claim or right given by law, irrespective of their marriage and any law to the contrary.

(emphasis added). The agreement did allow the couple to make testamentary gifts to each other by will or codicil without invalidating the prenuptial agreement:

Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other. Either of the parties may elect to make a gift to the other by Will without invalidating this provision and may thereafter change or eliminate the gift by a codicil or another Will without in any way affecting the continued effectiveness of this Agreement.

         Finally, they agreed that any changes to the prenuptial agreement must be in writing and signed by both the wife and the decedent.

         In 2013, the decedent signed a last will and testament and created a trust agreement which he later amended in 2014. That trust agreement directed that enough property be set aside to satisfy the wife's elective share: "There shall be set aside from the property of this trust as much property as is necessary to satisfy the Wife's elective share pursuant to Section 732.201, et seq., of the Florida Statutes, provided the requirements thereunder are satisfied and a timely election is filed."

         Both trust documents from 2013 and 2014 were signed only by the decedent, who died in 2017. The wife filed a notice of election to take the elective share in accordance with the trust agreement. Appellee, the decedent's son and trustee of the ...


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