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What is a Pretermitted Spouse and Their Legal Rights?
Definition & Meaning
A pretermitted spouse is a partner who has been unintentionally left out of a will. This situation often arises when a person gets married after creating their will, and the new spouse is not named in the document. In many cases, the law assumes that the testator (the person who made the will) would have included their spouse if they had been married at the time of writing the will. As a result, pretermitted spouses are typically entitled to inherit a share of the estate, similar to what they would receive if the testator had died without a will (intestate).
Table of content
Legal Use & context
This term is primarily used in the context of estate planning and probate law. It is relevant in family law, particularly when addressing issues related to inheritance and the rights of spouses. Pretermitted spouse statutes are designed to ensure that a spouse is not unfairly disadvantaged due to an oversight in the will. Users can manage their estate planning effectively by utilizing legal templates available through US Legal Forms, which are drafted by experienced attorneys.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
Example 1: John wrote his will before marrying Lisa. After their marriage, John passed away without updating his will. Under the pretermitted spouse statute, Lisa is entitled to inherit a share of John's estate as if he had died intestate.
Example 2: Sarah and Tom were married, but Tom created his will before their marriage. If Tom did not include Sarah in the will and did not have any documentation stating he intended to omit her, Sarah would be considered a pretermitted spouse and entitled to her share of the estate. (hypothetical example)
Relevant laws & statutes
One significant statute regarding pretermitted spouses is found in Florida law:
Fla. Stat. § 732.301 - This statute outlines the rights of a surviving spouse who was married after the will was made. It states that the spouse shall receive a share equal to what they would have received if the testator had died intestate, unless specific provisions have been made.
State-by-state differences
State
Pretermitted Spouse Statute
Florida
Spouse receives a share equal to intestate succession unless provisions are made.
California
Similar provisions exist; the spouse is entitled to a share unless intentionally omitted.
New York
Pretermitted spouse rights are recognized, with specific statutes governing entitlements.
This is not a complete list. State laws vary, and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Pretermitted Spouse
A spouse who is unintentionally left out of a will.
Intestate
When a person dies without a valid will, leading to distribution according to state laws.
Omitted Heir
A person who would inherit under intestate laws but is not mentioned in the will.
Common misunderstandings
What to do if this term applies to you
If you believe you may be a pretermitted spouse, consider the following steps:
Review the will and any related documents to understand your rights.
Consult with a legal professional to discuss your situation and potential entitlements.
Explore US Legal Forms for templates that can assist you in managing estate-related issues.
Complex matters may require professional legal assistance to navigate effectively.
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