## Facts

- Before marrying, Lora Louise (the surviving spouse) and Edward Gomes signed an antenuptial agreement in which she waived all rights to Gomes’s property, including any statutory elective share.
- Although Florida law did not require disclosure as a condition of a valid premarital waiver, Gomes voluntarily disclosed most of his assets before execution.
- One asset valued at approximately $10,000 was omitted from that voluntary disclosure.
- Gomes died in 2006, and his will was admitted to probate; the plan largely benefited his lineal descendants rather than the surviving spouse.
- The surviving spouse filed a notice/petition to take an elective share under Florida’s elective-share statutes.
- The estate’s personal representative moved to strike the elective-share election based on the antenuptial waiver and Fla. Stat. § 732.702.
- The trial court upheld the antenuptial agreement as valid and enforceable and struck the elective-share election.
- The surviving spouse appealed, arguing that the incomplete disclosure invalidated the waiver.

## Issues

1. Does a premarital waiver of elective-share rights become unenforceable when the decedent voluntarily disclosed assets but omitted a relatively minor asset before the agreement was signed?

## Decision

- The Fifth District Court of Appeal affirmed.
- Under Fla. Stat. § 732.702(2), no disclosure of assets is required for a premarital agreement waiving spousal rights, so an incomplete voluntary disclosure does not invalidate the waiver.
- The court rejected reliance on a dissenting view in *Stregack v. Moldofsky*; the controlling majority opinion and the statute remove nondisclosure (fraudulent or not) from the validity analysis for premarital waivers.
- The antenuptial agreement remained enforceable, and the elective-share election was properly stricken.

## Legal Principles

- A surviving spouse may waive elective-share rights (and other spousal rights) by written agreement under Fla. Stat. § 732.702(1).
- For agreements executed before marriage, Fla. Stat. § 732.702(2) provides that no prior disclosure of assets is required for validity.
- Under *Stregack v. Moldofsky*, 474 So. 2d 206 (Fla. 1985) (majority), nondisclosure—whether fraudulent or not—is not a basis to invalidate a premarital waiver covered by § 732.702(2).
- A party’s voluntary, partial disclosure does not create an enforceability requirement of complete accuracy that the statute does not impose.

## Conclusion

Because Florida law does not require asset disclosure to validate a premarital waiver of spousal rights, the omission of an approximately $10,000 asset from a voluntary disclosure did not defeat the antenuptial agreement, and the surviving spouse’s elective-share election was barred.


Foster v. Estate of Gomes, 27 So. 3d 145 (2010)