## Facts

- Edgar Putnam and his first wife, Joann Putnam, executed mutual wills in 1985 leaving each spouse’s entire estate to the survivor, with the residuary to their children at the survivor’s death.
- Each will contained a clause stating the wills were mutual and that the survivor would not change the manner of distributing the residuary estate or take actions intended to defeat that distribution.
- Joann died first; her will was probated without dispute.
- Edgar later married Mary Rachel Putnam and died without executing a new will providing for her; his 1985 will was admitted to probate.
- Rachel sought a pretermitted spouse’s share under Florida law because the will predated the marriage.
- The children argued Edgar breached the mutual-will contract by remarrying in a way that reduced their expected residuary inheritance and that their third-party-beneficiary contract rights should be treated as creditor claims with priority over Rachel’s statutory share.
- The trial court ruled for the children, treating them as third-party beneficiaries with a superior claim.
- The Second District Court of Appeal reversed and certified conflict with another district’s decision; the Florida Supreme Court accepted review.

## Issues

1. Whether children who are third-party beneficiaries of a mutual-will contract may be treated as estate “creditors” to obtain priority over a surviving spouse’s statutory pretermitted (or elective) share.
2. Whether a mutual-will contract may be enforced to diminish or defeat a later surviving spouse’s statutory share absent an express waiver of spousal rights.

## Decision

- The Florida Supreme Court approved the Second District’s decision.
- The Court held the surviving spouse’s right to a pretermitted spouse’s share (and, by the same policy rationale, an elective share) takes priority over the children’s interests under the mutual wills.
- The Court declined to give the children creditor status under Florida’s estate-claims priority statute when doing so would contravene the surviving spouse’s statutory rights.
- The Court rejected the theory that remarriage, leading to a statutory spousal claim, could be treated as a contract breach producing a superior claim against the estate.
- The Court disapproved contrary reasoning in the conflicting district decision to the extent it allowed mutual-will beneficiaries to override the later spouse’s statutory share.

## Legal Principles

- Florida’s public policy strongly protects the surviving spouse of the marriage existing at the decedent’s death, as expressed through elective-share and pretermitted-spouse statutes.
- Third-party beneficiaries of mutual wills are not treated as “creditors” with priority under the estate-claims statute when their asserted contract rights would reduce or defeat a surviving spouse’s statutory share.
- A mutual-will contract cannot be enforced to interfere with a later surviving spouse’s elective or pretermitted share unless the surviving spouse has expressly waived those statutory rights in a legally effective agreement.

## Conclusion

The court held that a surviving spouse omitted from a premarital will is entitled to the statutory pretermitted spouse’s share notwithstanding a prior mutual-will arrangement benefiting the decedent’s children, because the children’s contract-based expectations cannot be elevated above the spouse’s protected statutory rights absent a valid waiver.


Via v. Putnam, 656 So. 2d 460 (Fla. 1995)