The American Academy of Matrimonial Lawyers reported that in a national survey, more than 60 percent of top family law attorneys have seen an increase in the total number of prenuptial agreement requests over the last three years, many saying millennial newlyweds were a significant driver of the uptick, though older generations too are securing these agreements, particularly in second or subsequent marriages. The reason for the latter, the AAML noted, was because older couples have more assets to protect.

A recent Florida probate case involving a prenuptial agreement was weighed by Florida’s Fourth District Court of Appeal. The spat was between decedent’s son and his wife over the way the estate was administered.

The court noted a premarital agreement wherein decedent agreed to make a will favoring his wife. However, at some point after their marriage and prior to his death, decedent drafted a new will that excluded the wife in favor of his son. When her husband died and she learned of the new will, the widow filed a petition that sought admission of the will that favored her. The son promptly filed a counterpetition for the Florida probate court to instead admit the version of his father’s will that favored him. In challenging the son’s counterpetition, the widow alleged the will had been altered by way of undue influence.

Undue Influence in Florida Probate Disputes

As our Fort Lauderdale probate litigation attorneys can explain, undue influence involves someone close to the decedent – often a relative or caretaker – who manipulates or pressures the testator (person who wrote the will) into changing it in a way that has some degree of legal significance. That often means altering one’s will in order to favor one individual over another.

In the recent case before the 4th DCA, the lower court determined the wife was able to show substantial evidence raising a rebuttable presumption the son imposed undue influence on his father to disregard the will with language adhering to the prenuptial agreement and favoring the wife and write a new one that favored him. What that meant was the burden of proof shifted to the son to show he did NOT exert undue influence, and the lower court ruled he had not done that. Further, the court ruled the prenuptial agreement prevented decedent from revoking his earlier will in favor of his wife.

The 4th DCA agreed with the outcome, but wrote to clarify that a person always has the right to change their will. If that alteration breaches a contract – such as a prenuptial agreement – that becomes a separate issue. In this case, though, the error was harmless because the will presented by the son had already been invalidated on grounds of undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Kellar v. Estate of John W. Kellar, Oct. 24, 2018, Florida’s 4th District Court of Appeal

More Blog Entries:

Death of Ex Prompts Divorce Agreement on Marital Assets to Forefront in Florida Probate Dispute, Nov. 29, 2018, Fort Lauderdale Will Contest Attorney Blog

Generally, there are two ways this happens:

• A court order, typically following some type of biological testing.
• A signed acknowledgment by the father while he was alive.

A recent Florida case raised an interesting question that could be applicable to future probate litigation cases involving intestate estate where paternity is disputed. The Florida Supreme Court recently weighed in on the question of whether one can establish paternity when someone else is already presumed so by law.more

According to court records, a man claimed to be the father of a daughter born to respondent, as the two had been in a relationship for several years prior to the girl’s birth. However, the girl’s mother was also married to another man – a fact claimant said he did not know about prior to the child’s birth. Despite the marriage, the woman’s husband initially did not claim the child as his own, and claimant was present for the girl’s birth and supplied both financial and emotional support for the girl thereafter. Some time later, claimant asked a Florida civil court judge to declare him the child’s legal father. Both the girl’s mother and her husband objected, arguing a child born to a couple who is married is legally presumed to be the child of that couple. Trial court judge sided with the girl’s mother, finding that despite claimant’s evidence of paternity, he had no legal grounds upon which to pursue a paternity claim involving a child who was born in wedlock where the wedded couple objected.

The Florida 4th District Court of Appeal reversed, finding there is a presumption of legitimacy when a child is born to a married couple, but that presumption is rebuttable, meaning if he can produce evidence of his paternity, claimant does have the right to do so. The girl’s mother and her husband asked the Florida Supreme Court for review, and that request has been granted. In its decision to accept the case, the court pointed out the different conclusions reached by other appellate district courts in the state on the same issue.

The Florida Supreme Court‘s ruling came down on the side of the 4th DCA. In its decision, the court held that other courts that prior to this had adopted the legitimacy rule imposing an absolute bar to a biological father’s paternity claim when the child is born to a married couple was not necessary when previous case law had already established that even if a legal father is proven not to be the biological father, there must be a clear and compelling reason – based primarily on the child’s best interest – to overcome that presumption.

As for probate litigation cases, such matters may be more difficult to resolve after the death of either the presumed legal and/ or biological father, which is why it’s best to discuss options with an experienced South Florida probate litigation lawyer.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Simmonds v. Perkins, June 28, 2018, Florida Supreme Court

More Blog Entries:

Time Considerations in Challenging Probate Estates in Florida, July 5, 2018, South Florida Probate Litigation Attorney Blog