Surviving Spouse Attempts to Claim the Elective Share of the Decedent

Posted on May 17, 2017

In Sudman v. O’Brien, No. 2D16-286, 2017 WL 1829479 (Fla. 2nd DCA 2017), Theresa Z. Sudman appealed an order denying her claim to the elective share of her deceased husband’s estate.

Sudman was married to the decedent when he died in 2013. Michael O’Brien, the trustee of the decedent’s trust, filed a petition for administration of the decedent’s estate. Sudman also filed a petition for administration of the decedent’s estate. The court appointed Sudman as personal representative and issued orders of administration in May 2014.  In October 2014, Sudman filed an election to take the elective share of her deceased husband’s estate, pursuant to section 732.201, Florida Statute (2013).  The trustee filed an objection alleging that Sudman had waived her right to take the elective share by signing a prenuptial agreement. Trustee served Sudman with two requests for admissions asking her to admit that she executed a prenuptial agreement with the decedent prior to her marriage. Sudman failed to respond. The trial court conducted a non-evidentiary hearing in December 2015.  Following this, the trial court entered into an order finding the requests for admissions “are deemed admitted” and granted the trustee’s objection to Sudman’s election to take the elective share.

Sudman appealed, asserting that the trial court erred in treating her failure to respond to requests for admissions as technical admissions, that she waived her right to the elective share by signing a prenuptial agreement and in failing to hear her oral motion to be excused from the admissions.

The trial court viewed Sudman’s failure to respond to the trustee’s requests as admission that she had in fact entered into a prenuptial agreement with the decedent and had waived her right to the elective share.

Florida Rules of Civil Procedure 1.370(a) provides that “a matter is admitted unless the party answers or objects within thirty days after service of the request. Rule 1.370(b) provides “any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

The court’s record showed a document titled “Response to and Motion to Quasi Objection to take Elective Share” was filed by Sudman in response to the trustee’s objection. Additionally, Sudman’s counsel denied any allegations that Sudman had entered into a prenuptial agreement with the decedent.  Counsel stated that, “the undersigned has a good faith belief that a prenuptial agreement does not and never did exist between the decedent and his wife”.

Additionally, the court’s record showed that after the trial court entered its order granting the trustee’s objection, Sudman filed an affidavit stating she, “never entered into or signed a prenuptial agreement with the decedent and that she never entered into or signed any agreement to waive her elective share rights under Florida law”.  This affidavit was not presented to the trial court prior to the hearing or entry on the order on appeal. Therefore, the court will not consider it.

The appellate court affirmed the order because Sudman technically admitted that she had waived her right to the elective share in a prenuptial agreement and she did not demonstrate that she sought relief from her admissions.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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