       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          MARILYN M. WILSON,
                               Appellant,

                                     v.

GREGORY P. WILSON, as Trustee of the Paul C. Wilson Living Trust and
     as Personal Representative of the Estate of Paul C. Wilson,
                             Appellee.

                              No. 4D18-3691

                             [August 14, 2019]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Victoria L. Griffin, Judge; L.T. Case No.
312017CP001128.

   Jordan R. Hammer of Ellis Law Group, P.L., Boca Raton, for appellant.

   E. Steven Lauer of Lauer Law, P.A., Vero Beach, for appellee.

LEVINE, C.J.

    A married couple entered into a prenuptial agreement, waiving their
right to an elective share but reserving the right to make testamentary gifts
by will or codicil. Subsequently, the husband executed a last will and
testament and created a trust agreement, directing the trustee to set aside
“as much property as is necessary to satisfy the Wife’s elective share”
pursuant to the elective share statute. After the husband’s death, the wife
filed a notice of election to take elective share. The trial court struck the
election.

   We are asked to interpret the language of the prenuptial agreement.
Was the waiver of elective share in the prenuptial agreement modified by
the creation of the trust agreement which requested the setting aside of
property to satisfy the same elective share? We find that the language of
the prenuptial agreement unambiguously waived the wife’s elective share
and that the trust agreement could not modify the prenuptial agreement
under the terms of the prenuptial agreement itself and the applicable
statute. As such, we affirm.
   Appellant and the decedent got married in 2011. Before their marriage,
they entered into a prenuptial agreement. In the prenuptial agreement,
the couple agreed to waive the right to an elective share:

          Each of the parties does hereby and herewith release, waive
      and relinquish all rights that they may now have or may
      hereafter acquire in the property or estate of the other party
      by reason of their marriage, whether by way of dower, curtesy,
      elective share, family allowance, homestead, statutory
      allowance, pretermitted spouse statute, intestate share,
      community property, ERISA or any other claim or right given
      by law, irrespective of their marriage and any law to the
      contrary.

(emphasis added).      The agreement did allow the couple to make
testamentary gifts to each other by will or codicil without invalidating the
prenuptial agreement:

         Neither party intends by this Agreement to limit or restrict
      the right to give or receive a testamentary gift from the other.
      Either of the parties may elect to make a gift to the other by
      Will without invalidating this provision and may thereafter
      change or eliminate the gift by a codicil or another Will without
      in any way affecting the continued effectiveness of this
      Agreement.

Finally, they agreed that any changes to the prenuptial agreement must
be in writing and signed by both the wife and the decedent.

   In 2013, the decedent signed a last will and testament and created a
trust agreement which he later amended in 2014. That trust agreement
directed that enough property be set aside to satisfy the wife’s elective
share: “There shall be set aside from the property of this trust as much
property as is necessary to satisfy the Wife’s elective share pursuant to
Section 732.201, et seq., of the Florida Statutes, provided the
requirements thereunder are satisfied and a timely election is filed.”

   Both trust documents from 2013 and 2014 were signed only by the
decedent, who died in 2017. The wife filed a notice of election to take the
elective share in accordance with the trust agreement. Appellee, the
decedent’s son and trustee of the trust, filed a motion to strike the wife’s
election to take elective share.

   The trial court found the prenuptial agreement was unambiguous and

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struck the wife’s election for elective share. In so ruling, the trial court
found that the prenuptial agreement permitted the parties only to give or
receive testamentary gifts by will or codicil, that the prenuptial agreement
waived the wife’s ability to receive an elective share, and that the
prenuptial agreement could be modified only in writing with the signature
of both parties. From this order, the wife appeals.

   “A trial court’s interpretation of a prenuptial agreement is reviewed de
novo, as such agreements are governed by the law of contracts.” Berg v.
Young, 175 So. 3d 863, 867 (Fla. 4th DCA 2015).

   “Where a contract is clear and unambiguous, it must be enforced
pursuant to its plain language. In such a situation, the language itself is
the best evidence of the parties’ intent, and its plain meaning controls.”
Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. 2015) (citation and
quotation marks omitted).

   We find that the language of the prenuptial agreement unambiguously
waived the wife’s elective share. The agreement clearly stipulates that each
party has waived their right to the estate of the other, including the right
to an elective share. The creation of the trust agreement could not modify
the prenuptial agreement since it was not signed by both parties as
required by the prenuptial agreement. The controlling Florida Statute also
states that modification of a prenuptial agreement is valid only if signed
by both parties. See § 61.079(6), Fla. Stat. (2014) (“After marriage, a
premarital agreement may be amended, revoked, or abandoned only by a
written agreement signed by the parties.”).

   Further, any testamentary gifts, by will or codicil, envisioned by the
prenuptial agreement would not invalidate any of the provisions of the
prenuptial agreement. Therefore, even if the decedent gave the wife a
testamentary gift, the waiver of the elective share would still be effective.
Thus, if the decedent intended to give the wife a testamentary gift, he could
have done so by will or codicil without relying on an elective share and
specifically the requirements of the elective share statute.

   For the foregoing reasons, we find the trial court correctly found that
the prenuptial agreement had waived the wife’s elective share, and as
such, we affirm.

KUNTZ, J., and BOATWRIGHT, JOE, Associate Judge, concur.

                            *        *         *


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Not final until disposition of timely filed motion for rehearing.




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