5D09-1076 Foster v. Gomes

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-1076

Case Date: 01/25/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

LORA LOUISE FOSTER, Appellant, v. ESTATE OF EDWARD GOMES, Appellee. ________________________________/ Opinion filed January 29, 2010 Appeal from the Circuit Court for St. Johns County, J. Michael Traynor, Judge. Arthur I. Jacobs and Richard J. Scholz of Jacobs & Associates, P.A., Fernandina Beach, for Appellant. Steven L. Zakrocki of Upchurch, Bailey and Upchurch, P.A., St. Augustine, for Appellee. Case No. 5D09-1076

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 antenuptial 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 prior disclosure of assets for an antenuptial agreement.

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