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Via v. Putnan

Citation. Via v. Putnam, 656 So. 2d 460, 20 Fla. L. Weekly S 264 (Fla. June 8, 1995)
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Brief Fact Summary.

Edgar and Joann Putnan executed mutual wills in which they agreed not to commit any acts that would disrupt the distribution scheme. Edgar Putnam remarried after Joann Putnan died. Edgar Putnam’s surviving spouse, Mary Rachel Putnam (Rachel Putnam), elected to take her share under a pretermitted spouse statute and Edgar Putnam’s children from his first marriage sought a claim against the surviving spouse’s elective share.

Synopsis of Rule of Law.

Third party beneficiaries of a mutual will may do not have a claim to a surviving spouse’s elective share.


Edgar Putnan executed a mutual will with his wife Joann Putnan. Each agreed not to do anything that would defeat the distribution scheme of their wills. Joann Putnan died and did nothing to disrupt the distribution scheme of her will. Edgar Putnan remarried Rachel Putnam. Rachel Putnam elected to take her elective share as a pretermitted share. Edgar Putnam’s children from his first marriage sought to claim a judgment against their father’s estate as third party beneficiaries of his mutual will. The trial court held that the children were third party beneficiaries of their parents wills and that Edgar Putnam breached the contract by remarrying and upsetting the distribution scheme. The Appellate Court reversed.


Whether a mutual will may be enforced if it interferes with a surviving spouse’s elective share of her spouse’s estate under a pretermitted spouse statute.


No. Children that are third party beneficiaries of mutual wills should not be given the status of a creditor when the interests of the beneficiaries conflict with the interests of the surviving spouse under a pretermitted spouse statute. Flordia has strong public policy to protect a surviving spouse of a marriage at the time of the decedent’s death.


Courts will not allow parties to interfere with a surviving spouse’s rights under a pretermitted spouse statute unless the parties specifically waive their right to take an elective share. One spouse cannot through contract prevent another person from taking an elective share under a state statute.

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