CopyCited 12 times | Published | Supreme Court of Florida | 1995 WL 337970
...agreement; (2) The spouse is provided for in the will; or (3) The will discloses an intention not to make provision for the spouse. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s.
733.805. §
732.301, Fla....
...r her spouse. The legislature has made these shares of a deceased spouse's estate a part of the marriage contract. Florida's pretermitted spouse statute applies only "[w]hen a person marries after making a will and the spouse survives the testator." § 732.301, Fla....
...Accordingly, we approve the decision of the district court of appeal in this case and disapprove the decision of the Third District Court of Appeal in Johnson to the extent that it conflicts with this opinion. It is so ordered. GRIMES, C.J., and SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] § 732.301, Fla....
CopyCited 7 times | Published | Supreme Court of Florida
...V, § 3(b)(3), Fla. Const. The issue concerns the rights of a surviving spouse in the estate of the decedent spouse whose will was executed prior to *257 their marriage. It requires a construction and interpretation of Florida's pretermitted spouse statute, section 732.301, Florida Statutes (1979), as it relates to the Florida case law in force before the enactment of the Florida Probate Code of 1933. For the following reasons, we approve the interpretation of section 732.301's predecessor statute in Steinert's Estate, that a spouse is protected and entitled to an intestate share of the decedent spouse's estate under this statutory provision unless the will executed prior to marriage provides for the named surviving spouse and was executed in contemplation of marriage to that spouse....
...Ganier's 1977 will was admitted to probate, Mr. Ganier filed a petition in the trial court for a determination of beneficiaries. In this petition, Mr. Ganier asserted that he was entitled to an intestate share of his wife's estate because he was a pretermitted spouse within the meaning of section 732.301, Florida Statutes (1979), which provides: Pretermitted spouse....
...Ganier had left to Mr. Ganier in her will were not controlling, and stating: [S]aid provision in testatrix's Last Will and Testament did not constitute a provision for Frederic F. Ganier, also known as Fred Ganier, as testatrix's spouse, within the purview of Section 732.301(2), Florida Statutes....
...The trial court alternatively found that the two bank accounts devised to Mr. Ganier did not exist when Mrs. Ganier died so that there was no provision in the will for Mr. Ganier because the specific bequest had "lapsed." The district court, in a split decision, reversed, finding that section 732.301(2) requires only that the surviving spouse be "provided for" in a will executed before marriage, and rejected the trial court's conclusion that this statutory provision would apply only if Mrs....
...ing that it was for the individual as a surviving spouse. Neither of these statutes requires such a construction, and the substance of sections 11 and 15 has not been changed since the Probate Act of 1933. These sections are now codified as sections
732.301 and
732.507 of our current law. [5] Section
732.301(1)-(3) simply defines statutorily the "in contemplation of marriage" requirement....
...t of an upcoming marriage on the disposition of the estate and acts in contemplation of that marriage. A testator may evaluate an existing will and indicate the decision to leave the will untouched by executing a prenuptial or postnuptial agreement, section 732.301(1); a testator may change the will to provide for the intended spouse, section 732.301(2); or a testator can expressly disclose in the will a decision not to provide for the intended spouse, section 732.301(3)....
...In each case, the testator must act "in contemplation of marriage" in order to avoid inadvertently failing to provide for an intended spouse in the capacity of spouse. Steinert's Estate is the only decision, other than the decision in the instant case, to directly construe the meaning of section 732.301(2)....
...Marriage effects a profound change in a person's relationships and responsibilities. Substantially different considerations underlie a person's bequest to a friend or acquaintance and that person's testamentary provision for the well-being of a spouse. We hold that a spouse has not been "provided for," within the meaning of section 732.301(2), unless the testator both provided for a person named in the will executed before marriage and made such provision in contemplation of marriage to that named person....
...[5] See supra note 1. Section
732.507(1) provides: "Neither subsequent marriage nor subsequent marriage and birth or adoption of lineal descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss.
732.301 and
732.302, regardless of the prior will." [6] This section preceded section
732.301 and contained essentially the same language as its successor statute. [7] Our construction of section
732.301 is supported by the California Supreme Court's construction of a similar statute, California Probate Code, section 70 (Deering 1974)....
...act, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision... . Although the means are somewhat different, section 70 achieves the same effect as sections
732.507(1) and
732.301. The will is revoked only as to the surviving spouse, who takes an intestate share, while the remaining provisions of the will continue to be valid. In re Piatt's Estate, 81 Cal. App.2d 348, 183 P.2d 919 (Ct. App. 1947). As does section
732.301(2), section 70 provides that a surviving spouse will not take an intestate share if "the spouse is provided for in the will." In construing this language, the California Supreme Court, mindful of the significant change in a testator's...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...ion that Kohns was competent to marry appellee. This leaves remaining the question of whether appellee was entitled to those of the decedent's assets which were not already in the trust before he died. The answer appears to lie in the application of Section 732.301, Florida Statutes (1975), which reads: 732.301 Pretermitted spouse....
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...Ollie Lancaster, Jr. and John R. Godbee, Jr., Daytona Beach, for appellee. SHARP, Judge. The personal representative of Emma Kennedy Ganier's estate appeals the lower court's judgment declaring Frederic Ganier was a "pretermitted spouse" pursuant to section 732.301, Florida Statutes (1979) and allowing him to receive one half of Emma's estate....
...The trial court ruled that whether or not Frederic misappropriated or misspent Emma's funds was immaterial. We reverse this judgment because the record clearly shows that Frederic was "provided for" in Emma's will, at least prima facie, within the meaning of section 732.301, Florida Statutes (1979)....
...agreement; (2) The spouse is provided for in the will; or (3) The will discloses an intention not to make provision for the spouse. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with §
733.805. Section
732.301, Florida Statutes (1979)....
...79 Am.Jur.2d Wills § 576 (1975). These statutes are in derogation of the general power to make a will and should be strictly construed. No exception should be extended to include a class not clearly comprehended in the statute. 79 Am.Jur.2d Wills § 576 (1975). Section 732.301(2) simply and clearly says it is not applicable if the claiming spouse is "provided for in the will." It says nothing about the "gloss" superimposed by the lower court in this case that this provision must have been made "in contem...
...lation of marriage. Cases from those jurisdictions are not on point. See Annot., 97 A.L.R.2d 1026, § 3 (1964). There is no basis in Florida's pretermitted spouse statute to support the reinstatement of this common law rule. [3] Under a statute like section 732.301, a will which provides for the spouse is not revoked by the subsequent marriage of the testator, notwithstanding that there is no indication in the will or in the evidence that the testator contemplated marriage with such person when the will was made....
...Wills § 291 (1957); Redfearn, Wills and Administration in Florida, § 8.10 (5th ed. 1977). These rules were not changed in Florida until the Probate Act of 1933. The language of the act as found in section 8(d), section 5477(4)(d), Comp.Gen.Law Supp. was essentially the same as now found in section 732.301, Florida Statutes (1977) with which we are now concerned....
...tate, 44 Cal.2d 147, 280 P.2d 789 (1955). There the court pointed out that decisions applying the contrary rule gave no consideration to the underlying purpose and policy of the statute. The wording of the California statute is remarkably similar to section 732.301, Florida Statutes (1977)....
...That fact should not persuade us to adopt an impractical rule of law which, in my opinion, is in direct conflict with established and respected precedent. NOTES [1] The petition for administration valued the assets of Emma's estate at less than $60,000.00. [2] § 732.301(2), Fla....
...ould recover the misapplied assets from the guardian, or pursue a damage claim against him. Only if that fails should the question of ademption arise. In this case no pursuit is needed since Frederic apparently received his specific bequest. [1] Now section 732.301, Florida Statutes (1979)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1989 WL 29030
...Baskin, III, as Personal Representative of the Estate of Joseph Francis Gaspelin. ALTENBERND, Judge. The beneficiaries under the will of Joseph Gaspelin appeal the final judgment of the probate court declaring Doris Daerr Gaspelin to be a pretermitted spouse pursuant to section 732.301, Florida Statutes (1985)....
...competent, substantial evidence to support the lower court's findings under that standard. See Estate of Ganier v. Estate of Ganier,
418 So.2d 256 (Fla. 1982). Second, the beneficiaries argue that Mrs. Gaspelin is estopped to seek the protection of section
732.301, Florida Statutes (1985), because she filed the will, petitioned for its administration, and was appointed personal representative after executing the standard oath of personal representative....
...Gaspelin is estopped to receive her rights as a pretermitted spouse because she filed a subsequent conditional election to take elective share. There is nothing within the Florida Probate Code that suggests a spouse must abandon a claim as a pretermitted spouse under section
732.301 in order to seek an elective share under section
732.201, Florida Statutes (1985)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
decedent's estate as a pretermitted spouse under section
732.301. However, the "in contemplation of marriage"
CopyCited 2 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 541, 2011 Fla. LEXIS 2287, 2011 WL 4467595
...Editorial changes to conform to the court's guidelines for rules submissions as set forth in Administrative Order AOSC06-14. Committee Notes revised. Statutory References §
393.12, Fla. Stat. Capacity; appointment of guardian advocate. §
732.201-732.2155, Fla. Stat. Elective share of surviving spouse. §
732.301, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2001 WL 1230260
...Partington of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant. David E. Hightower of Beggs & Lane, Pensacola, for Appellee. BROWNING, J. Appellant appeals an order denying her petition for an allocation of her share as a pretermitted spouse under section 732.301, Florida Statutes (1999)....
...Appellant argues the trial court's construction of section
731.106(2) impermissibly supersedes Florida's common law rule concerning disposition of in-state realty, disregards Florida's strong public policy to protect pretermitted spouses, and misconstrues the proper effect of this section and section
732.301....
...licy change). The legislature, by enacting section
731.106(2), determined the public policy on the issue before this court, contrary to Appellant's position. Lastly, Appellant's argument that section
731.106(2) conflicts with, and is subordinate to, section
732.301, is also without merit....
...ute covering the same or other subjects more generally); Barnett Banks, Inc. v. Dep't of Revenue,
738 So.2d 502, 505 (Fla. 1st DCA 1999). Thus, unless a nondomiciliary testator expressly chooses Florida law to dispose of his or her Florida property, section
732.301 is inapplicable....
...In summary, the decedent, a Colorado domiciliary, did not provide in his will that Florida law should be applied to distribute his Florida property. Accordingly, the trial court properly denied Appellant's petition for an allocation of her share of the decedent's property under section
732.301, because section
731.106(2) dictates that Colorado law applies....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2008 WL 4863088
...Because of the divorce, those provisions affecting Tara became void. §
732.507(2), Fla. Stat. Thus, the will would be construed as a bequest to *1046 Braxton of the property contained in Article IV. Tawn was not mentioned in the will and constituted a pretermitted spouse. §
732.301, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...se. The order of the court entered upon such petition found and determined that Rowena B. Solomon, being the pretermitted spouse of Crawford Solomon, deceased, is entitled to receive one-half of the net intestate estate pursuant to the provisions of Section
732.301 and Section
732.102(1)(c), Florida Statutes (1977)....
CopyPublished | Supreme Court of Florida | 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1463, 1988 WL 143178
...st. Change in (b)(4) clarifies on whom the petitioner must serve *504 formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes. Statutory References F.S. 731.107 Adversary proceedings. F.S. 732.301 Pretermitted spouse....
CopyPublished | Supreme Court of Florida | 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1475, 1988 WL 53983
...e list. Change in (b)(4) clarifies on whom the petitioner niust serve formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes. Statutory References F.S. 731.107 Adversary proceedings. F.S. 732.301 Pretermitted spouse....
CopyPublished | Supreme Court of Florida
Stat. Elective share of surviving spouse. §
732.301, Fla. Stat. Pretermitted spouse. §
732.302 CopyPublished | Supreme Court of Florida | 9 Fla. L. Weekly 401, 1984 Fla. LEXIS 3390
...
324 So.2d 38 . 1977 Revision: Editorial changes to (a)(1). 1984 Revision: Extensive changes, committee notes revised and expanded. Statutory References F.S. 731.107 Adversary proceedings. F.S.
732.201 — 732.215 Elective share of surviving spouse. F.S.
732.301 Pretermitted spouse....
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 19507
controlling in this case. The applicable statute is section
732.301, Florida Statutes (1981), and it provides that
CopyPublished | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500
...ontribution as specific adversary proceedings. Committee notes revised. 2003 Revision: Committee notes revised. Statutory References § 731.107,-Fla. Stat. Adversary proceed-ingSr §§
732.201-732.2155, Fla. Stat. Elective share of surviving spouse. §
732.301, Fla....
CopyPublished | Supreme Court of Florida
...a will. Committee notes revised.
Statutory References
§
393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
-6-
§§
732.201–732.2155, Fla. Stat. Elective share of surviving
spouse.
§
732.301, Fla....
CopyPublished | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339
...Committee notes revised. 2003 Revision: Committee notes revised. 2008 Revision: Committee notes revised. Statutory References §
393.12, Fla. Stat. Capacity; appointment of guardian advocate. *580 §§
732.201-732.2155, Fla. Stat. Elective share of surviving spouse. §
732.301, Fla....
CopyPublished | Florida 5th District Court of Appeal
...robate court granted. By this time, Flaire Mae
had also died. Flaire Mae’s estate, believing that it was entitled to one-half of the assets
of Fred’s estate by virtue of Flaire Mae being Fred’s pretermitted spouse, 1 sought to
1 Section 732.301, Florida Statutes (2016), “Pretermitted spouse,” states:
When a person marries after making a will and the spouse
survives the testator, the surviving spouse shall receive a
share i...
CopyPublished | Supreme Court of Florida
...In Ganier’s Estate v. Ganier’s Estate,
418 So. 2d
256, 258 (Fla. 1982), we considered the pretermitted-spouse
statute, which protects “a spouse whom the testator . . . marrie[s]
after executing a will” from “inadvertent disinheritance.” Id.;
cf. §
732.301, Fla....
...(1977) (pretermitted-spouse statute). 3 By
its terms, that statute does not apply if the surviving spouse is
“provided for” in the relevant will. In interpreting this term, we
held: “[A] spouse has not been ‘provided for,’ within the meaning of
section 732.301(2), unless the testator both provided for a person
named in the will executed before marriage and made such
provision in contemplation of marriage to that named person.”
Ganier’s Estate, 418 So....
CopyPublished | Florida 2nd District Court of Appeal
...contemplation of his marriage to [Ms.] Gordon." He contends that when a decedent
makes a will in contemplation of marriage, a subsequent marriage does not entitle a
surviving spouse to take an intestate share of decedent's estate as a pretermitted
spouse under section 732.301.
However, the "in contemplation of marriage" requirement arose as a part
of the common law concerning surviving pretermitted spouses....
