What Went Wrong is our series on real, published cases. Each entry follows what the documents said, what the court did, and what it teaches. Every quotation comes from the court’s own order or from the complaint in the public court file. These are other parties’ cases, not our clients, and they predict nothing about any reader’s situation.
A widow in Miami-Dade County learned how a deadline can start on a day nobody tells you about. Her right to claim roughly thirty percent of an estate built on more than $350 million in assets expired six months after a document she signed was filed with the court. According to her lawsuit, she never saw the filing happen, and her lawyer never told her what it started.
A Marriage, an Agreement, and Three Attempts to Undo It
The husband was a Miami real estate investor in his eighties. According to the complaint filed October 23, 2026, his net worth statement dated May 1, 2018 listed total assets of $351,326,233. The couple signed a prenuptial agreement on September 7, 2018 and married three days later. The agreement waived the wife’s elective share and other surviving-spouse rights.
The prenup contained its own rules for undoing itself. The agreement stated it “may be mutually revoked by the Parties, but only if done so in writing signed by both of the Parties with their signatures witnessed by two (2) witnesses and notarized.”
The complaint alleges that in late 2019 or January 2020 the husband told the wife’s lawyer he wanted to revoke the prenup to protect her from his sons after his death. The same lawyer who had represented the wife prepared the revocation. According to the lawsuit, there was no conflict check, no written waiver from either spouse, and no notice to the husband’s own lawyer.
What followed, the complaint alleges, were three signings of a revocation. The first on April 8, 2020 was notarized but had no witnesses. In May 2020 the same firm drafted an amendment to the prenup that said the agreement “shall remain in full force and effect and are hereby ratified and affirmed.” The estate now argues that amendment ratified the waiver.
The second revocation, dated June 4, 2020, was witnessed by the wife’s own lawyer and her father. According to the complaint, it was notarized by a notary watching over a FaceTime video call who was not registered as a Florida online notary. Florida’s online notarization law requires a notary registered with the Department of State and a recorded audio-video session. That revocation recited only the 2018 agreement, not the May 2020 amendment.
The third revocation came June 24, 2020 with two witnesses and a notary, revoking both documents. The complaint alleges the lawyer watched from the pool area about ten feet away while the husband, masked because of the pandemic, signed inside the house. According to the lawsuit, there was no capacity assessment, no recording, no independent lawyer for the husband, and no reaffirmation in the fourteen months he lived afterward.
The Death, the Waiver, and the Deadline That Started Without a Notice
The husband died September 1, 2021. His will poured into his revocable trust, and according to the complaint most of the wealth was held through the trust and closely held companies.
On October 12, 2021 the wife signed a document in her lawyer’s office. It was titled a waiver of priority, consent to appointment of the son as personal representative, and waiver of notice and bond. The document said it “waives service of the Notice of Administration upon the undersigned.” According to the complaint, the wife told her lawyer to hold the document until the estate signed a tax indemnification agreement. The lawsuit says he emailed it to the estate’s lawyers at 5:45 p.m. that day. It was filed October 13, 2021.
Florida law treats a filed waiver of service as service itself. The six-month period to elect against the will began running the day the waiver was filed.
The complaint quotes the lawyer’s testimony about the deadline. He said an election “needs to be elected within a certain period of time from the commencement of an administration” but did not know the length, “whatever it be, 90, 180, whatever the case may be.” According to the lawsuit, he received electronic service of the filing and never opened it, never calendared the deadline, never advised the wife of it, never filed an election or a petition to extend, and never referred her to probate counsel.
The six months expired April 13, 2022. On July 21, 2022, according to the complaint, the lawyer emailed the wife that “[t]he execution of the other waiver does not prevent you from claiming the Elective Share; it gives you a 6-month period to do so.” When she wrote back that the six months had passed, he answered “Yes.”
Through new counsel the wife filed her election on August 31, 2023. It was within two years of the death but sixteen months after the deadline.
On August 12, 2026 the probate court granted summary judgment for the estate and struck the election with prejudice as untimely. The order “rests principally on a narrow, purely legal, and independently dispositive ground: the Election … was untimely.” The court held that no petition for an extension “was ever filed within the time permitted by §732.2135(2).” The court did not decide whether the revocation was valid and expressly reserved the undue influence and capacity questions. No appeal was taken.
The malpractice complaint filed October 23, 2026 seeks the value of the elective share, thirty percent of the elective estate. Nothing has been decided in the malpractice case.
How Florida Law Treats the Elective Share Clock
The elective share under Florida law is an amount equal to thirty percent of the elective estate. The elective estate includes property in the decedent’s revocable trust, not only the probate estate.
A surviving spouse must file the election by the earlier of two deadlines. The first is six months after service of the notice of administration on the surviving spouse. The second is two years after the decedent’s death. A petition to extend must be filed within that same period and tolls the clock while the petition is pending.
The rule that caught this widow appears in a single sentence of Florida law. When service of the notice of administration is waived, service is deemed to occur on the date the waiver is filed. A spouse who signs a waiver in a lawyer’s office may not see any document filed that day. The clock starts anyway.
There is no cure once the six months pass without an election or a petition to extend. The probate court has no discretion. The right is lost.
A prenuptial agreement is revoked after marriage only by a written agreement signed by both spouses. A waiver of spousal rights under Florida law must be signed in the presence of two subscribing witnesses. A revocation that undoes such a waiver should be executed with at least the same formality. The husband in this case should have been advised by his own lawyer before signing anything that gave up or restored his wife’s rights.
Three Lessons from a Lost Election
The allegations in this complaint point to three failures, any one of which could happen to another family.
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A revocation of a prenup is itself a marital agreement. It should be executed with at least the formalities of the waiver it undoes. That means two subscribing witnesses physically present and a notary, with the spouse signing the revocation advised by independent counsel. A revocation prepared by the other spouse’s lawyer, signed with the lawyer watching from outside the house, without capacity review, and never reaffirmed, invites the exact fight the agreement was written to prevent.
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The elective share clock can start on a day the spouse never sees a notice. A filed waiver of service is service. The only cure is an election or a petition to extend filed before the six months run. A lawyer handling any part of an estate administration must know that deadline and calendar it the day the waiver is filed.
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A spouse with rights under a prenup or a revocation needs a probate lawyer, not only a family lawyer. The rights turn on deadlines and filings that run in probate court.
A second marriage often involves a prenuptial agreement, a revocable trust, and beneficiary designations that may or may not say the same thing. A surviving spouse may have rights nobody remembered to claim. A reader with a second marriage, or a parent who remarried, should have the agreement and the estate plan read together before a death puts them to the test.
Related Guides
- Elective Share: 30% a Spouse Can Claim, Florida Attorney
- Does a Prenup Apply at Death in Florida? Yes
- Florida Prenuptial Agreement Attorney
- Florida Postnuptial Agreement Attorney
- Florida Postmarital Agreement: How Courts Judge It
Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship.
