## Facts

- A husband and wife were in a pending dissolution proceeding when they executed a partial marital settlement agreement (PMSA).
- The PMSA divided certain marital assets and liabilities but expressly excluded alimony and a portion of the husband’s pension benefits.
- The PMSA provided for sale of the marital home but did not change the spouses’ ownership interests or survivorship rights in the home.
- The family court entered an order adopting the PMSA but did not enter a final judgment of dissolution before the husband died intestate; the dissolution case was dismissed after his death.
- In probate, the husband’s brother petitioned to be appointed personal representative and sought enforcement of the PMSA as a waiver of the wife’s intestate rights, including a finding that the home was held as a tenancy in common.
- The wife counter-petitioned to be appointed personal representative as the surviving spouse and sole intestate beneficiary.
- The probate court granted the wife final summary judgment, recognized her intestate spousal rights, and appointed her as personal representative.

## Issues

1. Whether the PMSA constituted a “complete property settlement” that waived the wife’s intestate spousal rights under Florida Statutes § 732.702 (2019).
2. Whether the PMSA’s language was equivalent to an express waiver of spousal rights that complies with § 732.702.
3. Whether the probate court reversibly erred by treating the decedent’s divorce attorney affidavit as invalid due to improper notarization.

## Decision

- The Fourth District Court of Appeal affirmed the probate court’s final summary judgment.
- The court held the PMSA was not a complete property settlement waiving intestate spousal rights under § 732.702.
- The court held the PMSA did not contain a statutorily sufficient express (or equivalent) waiver of the wife’s spousal rights.
- The court found no reversible error in the probate court’s treatment of the divorce attorney’s affidavit as invalid due to defective notarization.
- The wife remained the surviving spouse because no final dissolution judgment was entered before death; she therefore retained intestate spousal rights and was properly appointed personal representative.

## Legal Principles

- A surviving spouse’s intestate rights may be waived only in compliance with Florida Statutes § 732.702, including required execution formalities for a written waiver.
- A “complete property settlement” may operate as a waiver under § 732.702 only when it fully and finally resolves the spouses’ property rights; a partial agreement that leaves major issues unresolved is insufficient.
- An agreement that contemplates sale of a marital home, without changing title or survivorship interests, does not by itself convert ownership to a tenancy in common or eliminate survivorship-based rights.
- If a dissolution action is pending but no final judgment is entered before a spouse’s death, the marriage is not dissolved for probate purposes, absent a valid statutory waiver.

## Conclusion

The appellate court affirmed summary judgment for the wife, holding that the partial marital settlement agreement did not satisfy § 732.702 as a waiver or complete property settlement, and because the marriage was never dissolved before death, the wife retained intestate spousal rights and was properly appointed personal representative.


Merli v. Merli, 332 So. 3d 1020 (Fla. Dist. Ct. App. 4th Dist. 2022)