Legal Question in Wills and Trusts in Florida
marital agreement vs Will - which has precedence?
My Mother and StepDad had troubles in their marriage after 6 years. They separated, Mom and Step-Dad set up a marital settlement. Part of that settlement was that they would waive completely, all rights to each other estates in the future. They set it up so that if they reconciled, the agreement would still stand. And, if one of them waived part of it, it would still stand. It was binding on heirs,kin etc. A few months after the Divorce,our Mom and StepDad reconciled. Then they got remarried, and new Wills written up. They set up their Wills so the surviving spouse would get the full estate, then after the spouse died, it would be split between the children of both of them equally. 2 years later and Mom died and Step-Dad took everything. At the time we did not know of the marital settlement agreement. We only found out about that recently. And, before Step-Dad died, he changed his Will so his one son received everything. My Sister and I received nothing at all.
We want to know if their Wills are valid because of the agreement that said they waived their rights to each other's estates. Since Step-Dad never filed Mom's Will for Probate, can we go after Mom's money and property that StepDad took?
1 Answer from Attorneys
Re: marital agreement vs Will - which has precedence?
There was a contract to dispose of the assets a certain way. Although the will is technically valid if properly executed, it may not have any effect, or parts of it may be invalidated because of the agreement. Whether or not you have a case strong enough to litigate will depend on the actual agreement and will. You need to show the documents to an attorney (probate litigation attorney) and let him or her evaluate the case.
As for probate, you should try to open an administration (in the local court, where the decedent was a resident). If you do not have the will, you can file a petition to have it turned over to the court. The same attorney should be able to handle all of this as well. Good luck.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
