JOSEPH DELGADO, APPELLANT,
v.
LAURA CAL COTTA DE LOPEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARIA TERESA COTTA-BENITEZ, APPELLEE
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Joseph Delgado sought an elective share of his deceased wife Maria's estate after they remarried following a prior divorce. The court initially denied his claim based on a waiver in their property settlement agreement, but the District Court of Appeal reversed, holding that remarriage renders such waivers unenforceable under Florida law.
Remarriage renders the waiver provision of a property settlement agreement unenforceable, even when the agreement has been incorporated into the final judgment of dissolution. Therefore, Joseph's remarriage to Maria gave him enforceable rights to take an elective share of her estate despite the earlier waiver.
[1] A remarriage between parties who previously divorced renders a waiver of spousal rights in a property settlement agreement unenforceable.
[2] Reconciliation and resumption of marital relations between divorced parties can void a previous property settlement agreement.
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Join FLexlaw to unlock all legal intelligence“[i]t appears to be well settled that reconciliation of husband and wife and resumption of marital relations for any period of time will render a previous contract and settlement of property rights void....”
Establishes the foundational principle from Weeks v. Weeks that reconciliation voids prior property settlements
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Join FLexlaw to unlock all legal intelligenceMaria Cotta-Benitez and Joseph Delgado married in 1977. Maria filed for divorce in 1983, and the parties executed a property settlement agreement waiv…
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BASKIN, Judge.
Maria Teresa Cotta-Benitez and Joseph Delgado were married in 1977. In 1983, Maria filed a petition for dissolution of marriage. Joseph was served personally; however, he did not file an answer. During the pendency of the divorce action, the parties entered into a property settlement in which each party waived all rights “that he or she may now have or hereafter acquire as the other party’s spouse ... to elect to take against any Will or Codicil of the other party now in force ...; to share in the other party’s estate and to exercise any right to dower or curtesy.” See § 732.702, Fla.Stat. (1987). The property settlement was incorporated in the final judgment of dissolution of marriage entered on May 30, 1984.
In 1985, the parties remarried each other and remained married until Maria’s death on April 1,1987. Following the submission of Maria’s will for probate, Joseph filed a petition to take an elective share of Maria’s estate, see § 732.201, and for determination of homestead in certain real property. The court entered an order declaring Joseph Maria’s surviving and pretermitted spouse in accordance with sections 732.201 and 732.301, but ruled that Joseph waived his rights under section 732.702.
Consequently, the court denied the petition to take an elective share and to determine homestead. Subsequently, Joseph’s counsel discovered a written agreement signed by Joseph and Maria on March 22, 1984. In that agreement, the parties revoked the property settlement agreement. Acting on the new disclosure, the court vacated its order, took testimony, and considered the newly discovered agreement and other documents pertaining to the divorce action. The court entered an order granting the motion for judgment on the pleadings filed by Laura Cal Cotta de Lopez, personal representative under Maria’s will. Joseph appeals and we reverse.
In Weeks v. Weeks, 143 Fla. 686, 691, 197 So. 393, 395 (1940), the Florida Supreme Court stated “[i]t appears to be well settled that reconciliation of husband and wife and resumption of marital relations for any period of time will render a previous contract and settlement of property rights void....” See also Mills v. Mills, 460 So. 2d 545 (Fla. 1st DCA 1984); Zullo v. Zullo, 317 So. 2d 453 (Fla. 3d DCA 1975), writ discharged, 342 So. 2d 77 (Fla.1977).
This court has held that Weeks applies when the parties remarry each other, Weston v. Weston, 483 So. 2d 822 (Fla. 3d DCA 1986); Carter v. Carter, 309 So. 2d 625 (Fla. 3d DCA 1975), and that the Weeks rule is applicable when the property settlement agreement has been incorporated into the final judgment of dissolution. Weston. Applying these principles, we hold that where, as here, the parties have remarried, the remarriage renders the waiver provision of the property settlement agreement unenforceable. Our resolution of this issue obviates the need to reach the question of the effect of the revocation on the separation agreement.
We reverse and remand for further proceedings consistent with this opinion.1
Reversed and remanded.
. In her cross-appeal, Laura Cal Cotta de Lopez argues that the trial court erred in failing to award attorney’s fees to the estate. We find no merit in this contention.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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COX v. Kimi Lea COX, 659 So. 2d 1051 (Fla. 1995)…0) (concluding that under Weeks the parties’ prior property settlement agreement should be considered void by virtue of the parties’ remarriage to each other and the trial court abused its discretion in holding otherwise); Delgado v. Cotta de Lopez, 546 So. 2d 1075 (Fla. 3d DCA 1989) (concluding that the parties’ remarriage to each other rendered the elective-share waiver provision of a prior property settlement agreement unenforceable); Weston v. Weston, 483 So. 2d 822 (Fla. 3d DCA 1986) (concluding that a wi…
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Thomas v. Randell D. Thomas, 571 So. 2d 499 (Fla. 1st DCA 1990)…at the trial court should have examined the circumstances of the instant agreement with greater care. This case presents the additional question whether remarriage of the parties serves to abrogate the prior agreement. In Delgado v. Cotta de Lopez, 546 So. 2d 1075 (Fla. 3d DCA 1989), as in the instant case, there was a marriage, a divorce, and remarriage. The parties were first married in 1977, and entered into a property settlement agreement in 1983 during the penden-cy of a divorce action. In the agreement,…
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Kimi Lea COX v. COX, 638 So. 2d 586 (Fla. 1st DCA 1994)…(1940) (“It appears to be well settled that reconciliation of husband and wife and resumption of marital relations for any period of time will render a previous contract and settlement of property rights void.”); see also Delgado v. Cotta de Lopez, 546 So. 2d 1075 (Fla. 3d DCA 1989); Gosline v. Gosline, 435 So. 2d 413 (Fla. 5th DCA 1983); Hudson v. Fatolitis, 289 So. 2d 41 (Fla. 2d DCA 1974).2 Professor Clark suggests that the agreement should be valid, unless adherence to the agreement would be unconscionabl…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weeks v. Lotta N. Weeks, 143 Fla. 686 (Fla. 1940)
- Gertrude S. Zullo v. Zullo, 342 So. 2d 77 (Fla. 1977)
- Mills v. Mills, 460 So. 2d 545 (Fla. 1st DCA 1984)
- Doyle Edgar Carter v. Carter, 309 So. 2d 625 (Fla. 3d DCA 1975)
- Harrington v. Harrington, 317 So. 2d 453 (Fla. 1st DCA 1975)
- Gertrude S. Zullo v. Zullo, 317 So. 2d 453 (Fla. 3d DCA 1975)
- Weston v. Weston, 483 So. 2d 822 (Fla. 3d DCA 1986)