Foster v. Estate of Gomes

District Court of Appeal of Florida

Foster v. Estate of Gomes

27 So. 3d 145, 2010 Fla. App. LEXIS 559, 2010 WL 322170

CourtDistrict Court of Appeal of Florida

DecidedJanuary 29, 2010

Docket5D09-1076

StatusPublished

This text of 27 So. 3d 145 (Foster v. Estate of Gomes) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. Estate of Gomes, 27 So. 3d 145, 2010 Fla. App. LEXIS 559, 2010 WL 322170 (Fla. Ct. App. 2010).

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Opinion

COHEN, J.

Prior to their marriage, Lora Foster and Edward Gomes entered into an antenuptial agreement in which Ms. Foster waived all right to Mr. Gomes’s property, including her right to an elective share. Although not required by Florida law, Mr. Gomes disclosed the bulk of his assets when they entered the agreement, omitting one asset valued at approximately $10,000.

Subsequent to Mr. Gomes’s death in 2006, his will was admitted into probate. The will left all property not specifically devised to Ms. Foster to his lineal descendants. Ms. Foster filed a notice of her election to take her elective share pursuant to section 732.201, et seq., Florida Statutes (2006). The personal representative moved to strike the petition for elective share, citing section 732.702(1), Florida Statutes (2006), and the antenup-tial agreement. The trial court found the antenuptial agreement valid and enforceable, ruling that Ms. Foster waived her right to an elective share of the estate and that Mr. Gomes’s failure to disclose a minor asset did not affect the enforceability of the agreement. This appeal followed.

Florida law does not require pri- or disclosure of assets for an antenuptial agreement. § 732.702(2). Recognizing this, Appellant argues that a disclosure, once made, albeit voluntarily, if inaccurate or fraudulent, invalidates the antenuptial agreement, citing Stregack v. Moldofsky, 474 So.2d 206 (Fla.1985) (Ehrlich, J., dissenting). Unfortunately for Appellant, that dissenting opinion has not garnered a consensus either within the Florida Legislature or Florida courts. We prefer, instead, to rely upon the binding majority opinion which stated, “[njondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of ante-nuptial agreements.” Stregack, 474 So.2d at 207. In so holding, the law continues to accommodate the desires of older Florida residents to marry again without risking *147 an unwanted disposition of a lifetime’s assets due to a partial disclosure. See id.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

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COHEN, J.

Prior to their marriage, Lora Foster and Edward Gomes entered into an antenuptial agreement in which Ms. Foster waived all right to Mr. Gomes’s property, including her right to an elective share. Although not required by Florida law, Mr. Gomes disclosed the bulk of his assets when they entered the agreement, omitting one asset valued at approximately $10,000.

Subsequent to Mr. Gomes’s death in 2006, his will was admitted into probate. The will left all property not specifically devised to Ms. Foster to his lineal descendants. Ms. Foster filed a notice of her election to take her elective share pursuant to section 732.201, et seq., Florida Statutes (2006). The personal representative moved to strike the petition for elective share, citing section 732.702(1), Florida Statutes (2006), and the antenup-tial agreement. The trial court found the antenuptial agreement valid and enforceable, ruling that Ms. Foster waived her right to an elective share of the estate and that Mr. Gomes’s failure to disclose a minor asset did not affect the enforceability of the agreement. This appeal followed.

Florida law does not require pri- or disclosure of assets for an antenuptial agreement. § 732.702(2). Recognizing this, Appellant argues that a disclosure, once made, albeit voluntarily, if inaccurate or fraudulent, invalidates the antenuptial agreement, citing Stregack v. Moldofsky, 474 So.2d 206 (Fla.1985) (Ehrlich, J., dissenting). Unfortunately for Appellant, that dissenting opinion has not garnered a consensus either within the Florida Legislature or Florida courts. We prefer, instead, to rely upon the binding majority opinion which stated, “[njondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of ante-nuptial agreements.” Stregack, 474 So.2d at 207. In so holding, the law continues to accommodate the desires of older Florida residents to marry again without risking *147 an unwanted disposition of a lifetime’s assets due to a partial disclosure. See id.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

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27 So. 3d 145, 2010 Fla. App. LEXIS 559, 2010 WL 322170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-estate-of-gomes-fladistctapp-2010.

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