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The question of priorities between a surviving spouse and beneficiaries under a contract to make a will should be resolved based upon the public policy which surrounds the marriage relationship and which underlies the elective share statute. In addition to the public policy underlying these statutes, the public policy surrounding the marriage relationship also suggests that the surviving spouse's claim to an elective share should be afforded priority over the claims of beneficiaries of a contract to make a will. Like the majority of other courts, the court recognizes the well settled principle that contracts which discourage or restrain the right to marry are void as against public policy.
This case involved a dispute between respondent, decedent's surviving spouse, who claimed a share of decedent's estate under the pretermitted spouse statute, Fla. Stat. Ann. § 732.301 (1993), and petitioners, the children of decedent's first marriage, who claimed that the mutual wills executed by their parents, naming them residuary beneficiaries of their parents' estates, gave rise to a creditor's contract claim that had priority against respondent's claim against the estate. The lower court held that respondent's right to receive either an elective share or pretermitted spouse's share of the decedent's estate had priority over petitioners' claims. The lower court further noted conflict with a previous decision.
As third-party beneficiaries of a mutual will, did the children of decedent's first marriage have priority over the statutory rights of the decedent's surviving spouse?
The court affirmed the decision of the district court, concluding that with the enactment of § 732.301, Florida evidenced a strong public policy concerning the protection of the surviving spouse of the marriage in existence at the time of a decedent's death. The court refused to amend § 732.301 and determined that, as third-party beneficiaries of a mutual will, the children of decedent's first marriage did not have priority over the statutory rights of the decedent's surviving spouse.