This fifth installment of a 7-part series about Domestic Partnership Agreements discusses survivor’s rights on death.
Florida law provides for survivor’s rights if a married person dies before the other spouse and they have no premarital or postnuptial agreement. But for unmarried domestic partners, Florida law provides no survivor benefits upon the decedent’s death. Through careful planning and drafting of a domestic partnership agreement, however, partners can achieve similar financial rights on death.
Elective Share – Create Equivalent Survivor’s Rights for Domestic Partners?
A survivor’s right available to a surviving spouse, but not to unmarried couples, is the “elective share.” See section 732.201-732.2155, Florida Statutes. The elective share is a surviving spouse’s right to a share of the decedent’s estate no matter what the will provides. A marrying or married party may waive that right. Florida law specifies the property included in the “elective estate.” The amount of the elective share is generally 30 percent of the “elective estate.”
For example, for married couples, if a spouse’s will provided the other spouse would get $100,000 upon death, and the rest of the wealth, money, and property would go into a trust for someone other than the surviving spouse, but the decedent’s “elective estate” calculated under Florida law were worth $1 million, the surviving spouse could elect to take $300,000.
Options for Survivor Death Benefits of Domestic Partner
To provide for survivor’s rights, domestic partners may use definitions similar to those for the spousal elective share. Their agreement could provide for irrevocable commitments that the survivor partner would share in the decedent’s estate. These irrevocable commitments for survivor death benefits would stand, regardless of what a later will were to provide.
The draft agreement could lay out alternative provisions for either party to consider:
- There will be a partial waiver and release of property and estate rights and a specific waiver of any right to include the value of the interests in trusts in a partner’s share upon the other’s death.
- Both parties will waive and release property and other estate rights upon the other’s death.
- Absent later different written arrangements, there will be specific irrevocable rights in the other party’s estate upon the party’s death.
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