Legal Question in Wills and Trusts in Florida

Re: Wills Florida

OK, you've actually got a couple of different questions.

First, the second wife is what is called a "Pretermitted spouse", which means she married AFTER the last will was drafted. The legal significance of this fact is that Florida law 'partially revokes' the old will upon marriage, except under some specific circumstances, and the new wife would get one half of the estate no matter what the old will says.

Second, in Florida, the presumption is that if you can't find a will after the death of someone, that they destroyed it with the intent to revoke it; if you want to probate a copy of the will you have to be able to show some circumstances that would lead you to conclude that it was not destroyed by the testator with the intent to revoke it; classic situation is where the house burns down, the testator dies in the fire, and the will was probably destroyed in the fire. There may be other situations where it would be presumed not to be revoked as well

So, what it comes down to is this; even if you probated the copy of the old will, New Wife would probably get half of the estate under our pretermitted spouse statute, unless she waived that right under a prenuptial or postnuptial agreement; if the will is not probated, she would get half the estate under our intestatcy statute. There might be slight differences in how the probate goes (who gets to be personal representative/executor, whether or not bond is required) but chances are that there wouldn't be a big difference in the final outcome; new wife would probably get half either way.

I'd suggest you call me or another Florida probate attorney.