RICHARD MERLI v. DONNA MERLI

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           RICHARD MERLI,
                              Appellant,

                                    v.

                            DONNA MERLI,
                              Appellee.

                             No. 4D21-1888

                            [January 5, 2022]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. PRC19-
5226.

  Jerome R. Schechter of Jerome R. Schechter, P.A., Fort Lauderdale,
and Danielle Greenberg of Danielle Greenberg, PA, Fort Lauderdale, for
appellant.

   Sean Gregory Perkins and Zachary A. Hudson of Morgan & Morgan,
P.A., West Palm Beach, for appellee.

HARPER, BRADLEY, Associate Judge.

   Appellant Richard Merli (the decedent’s brother) appeals from the
probate court’s order granting final summary judgment in favor of Appellee
Donna Merli (the decedent’s wife), which recognized the wife’s intestate
spousal rights and appointed the wife as personal representative of the
decedent’s estate. Appellant argues the probate court erred in three
respects: (1) by finding the decedent’s and the wife’s partial marital
settlement agreement was not a complete property settlement pursuant to
section 732.702, Florida Statutes (2019); (2) alternatively, by failing to
deem language in the partial marital settlement agreement to be equivalent
to a waiver of spousal rights; and (3) by finding the decedent’s divorce
attorney’s affidavit to be invalid because it was improperly notarized.

   We conclude that all of the brother’s arguments lack merit. After
providing a brief procedural history, we will address each argument in
turn.
                            Procedural History

    The decedent died intestate while his dissolution of marriage
proceeding with the wife was pending. Before his death, the decedent
entered into a partial marital settlement agreement with the wife. The
partial marital settlement agreement divided certain marital assets and
liabilities, but specifically excluded alimony and a portion of the decedent’s
pension benefits. Also, the partial marital settlement agreement provided
for the sale of the marital home, but did not contain an agreement to
change the spouses’ ownership interest in the marital home.

   The family court entered an order adopting the partial marital
settlement agreement. However, at the time of the husband’s death, the
family court had not entered a final judgment of dissolution of marriage.

   The brother petitioned the probate court to serve as personal
representative of the decedent’s estate. The brother contended he had
standing as the decedent’s brother and heir-at-law, and requested the
probate court to enforce the partial marital settlement agreement as
binding and find that the marital home was owned as a tenancy in
common between the decedent and the wife.

   The wife counter-petitioned to serve as personal representative on the
basis that she was the decedent’s surviving spouse and sole beneficiary of
the decedent’s estate. The wife later moved for final summary judgment
on her counter-petition, arguing, in part, that the couple’s marriage had
never been dissolved and that the family court had dismissed the
dissolution proceeding upon the decedent’s death.

   After a hearing, the probate court entered an order granting the wife’s
summary judgment motion and appointing the wife as personal
representative of the decedent’s estate. The probate court found the
partial marital settlement agreement did not contain any language which
could constitute a waiver of spousal rights pursuant to section 732.702(1),
Florida Statutes (2019). The brother timely filed a notice of appeal.

                                  Analysis

   Our standard of review is de novo. See Chipman v. Chipman, 975 So.
2d 603, 607 (Fla. 4th DCA 2008) (a postnuptial agreement, like any other
contract, is subject to de novo review).

   We conclude the probate court properly found the partial marital
settlement agreement did not contain any language which could constitute

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a waiver of spousal rights pursuant to section 732.702(1), Florida Statutes
(2019).

   Section 732.702 requires a spouse’s explicit waiver of intestate rights:

      (1) The rights of a surviving spouse to an elective share,
      intestate share, pretermitted share, homestead, exempt
      property, family allowance, and preference in appointment as
      personal representative of an intestate estate or any of those
      rights, may be waived, wholly or partly, before or after
      marriage, by a written contract, agreement, or waiver, signed
      by the waiving party in the presence of two subscribing
      witnesses. The requirement of witnesses shall be applicable
      only to contracts, agreements, or waivers signed by Florida
      residents after the effective date of this law.… Unless the
      waiver provides to the contrary, a waiver of “all rights,” or
      equivalent language, in the property or estate of a present or
      prospective spouse, or a complete property settlement entered
      into after, or in anticipation of, separation, dissolution of
      marriage, or divorce, is a waiver of all rights to elective share,
      intestate share, pretermitted share, homestead, exempt
      property, family allowance, and preference in appointment as
      personal representative of an intestate estate, by the waiving
      party in the property of the other and a renunciation by the
      waiving party of all benefits that would otherwise pass to the
      waiving party from the other by intestate succession or by the
      provisions of any will executed before the written contract,
      agreement, or waiver.

      (2) Each spouse shall make a fair disclosure to the other of
      that spouse’s estate if the agreement, contract, or waiver is
      executed after marriage.…

      (3) No consideration other than the execution of the
      agreement, contract, or waiver shall be necessary to its
      validity, whether executed before or after marriage.

§ 732.702(1-3), Fla. Stat. (2019).

   Pursuant to the plain language of section 732.702 and the partial
marital settlement agreement, neither the decedent nor the wife explicitly
waived their right to an elective share, intestate share, pretermitted share,
homestead, exempt property, family allowance, or preference as personal
representative.

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    The brother relies on the phrase “complete property settlement” in
section 732.702(1), and on Snow v. Mathews, 190 So. 2d 50 (Fla. 4th DCA
1966), to conclude the couple’s alleged “complete settlement” was evidence
of spousal waiver.

    The brother’s reliance on Snow is misplaced for three reasons. First,
the subject marital settlement is not a complete settlement as it did not
clearly, specifically and explicitly settle all matters of dispute between the
parties. Second, Snow did not address a surviving spouse’s waiver of
intestate rights pursuant to section 732.702(1). Third, in Snow, the
married couple’s separation agreement – which included all of their jointly
owned property and the marital home – was detailed, specific, and
explicitly provided, “‘[U]pon the execution of this agreement each of the
parties shall be tenants in common’ … in the described properties, and the
agreement shall be binding upon their heirs and personal representatives.”
Id. at 51.

   Here, the dissolution proceeding remained pending at the time of the
decedent’s death. Thus, when the decedent died, the family court properly
dismissed the dissolution proceeding without entering a final judgment.
See Marlowe v. Brown, 944 So. 2d 1036, 1039-40 (Fla. 4th DCA 2006)
(“The dissolution of marriage action terminated with the death of the
husband and the dissolution judge should have dismissed the case upon
the wife’s motion.”) (citations omitted).

   As a result, the decedent’s death left the wife in “[t]he legal position of
one whose marriage was terminated by death, and not by a final
judgment.” Marlowe, 944 So. 2d at 1040. The partial settlement
agreement’s terms do not amount to a binding final decree. Moreover,
nothing in the subject partial settlement agreement evinces an intent by
either party to waive their intestate rights.

   Lastly, we find no need to reach the brother’s argument that the
decedent’s attorney’s affidavit was improperly stricken, because the partial
settlement agreement’s unambiguous language does not waive intestate
spousal rights. See Prime Homes, Inc. v. Pine Lake, LLC, 84 So. 3d 1147,
1152 (Fla. 4th DCA 2012) (“Parol evidence is inadmissible to contradict,
vary, or modify terms which are unambiguously contained within a written
agreement.”).

   Accordingly, we affirm the probate court’s order granting final summary
judgment which recognized the wife’s intestate spousal rights and
appointed the wife as personal representative of the decedent’s estate.

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   Affirmed.

CIKLIN and ARTAU, JJ., concur.

                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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