MARILYN M. WILSON, Appellant,
GREGORY P. WILSON, as Trustee of the Paul C. Wilson Living Trust and as Personal Representative of the Estate of Paul C. Wilson, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Victoria L. Griffin, Judge; L.T. Case
R. Hammer of Ellis Law Group, P.L., Boca Raton, for
Steven Lauer of Lauer Law, P.A., Vero Beach, for appellee.
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
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.
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
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.
they agreed that any changes to the prenuptial agreement must
be in writing and signed by both the wife and the decedent.
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."
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 ...