January 2012 Archives

January 31, 2012

Gay and Lesbian Parents Need Estate Planning

Rainbow families.jpgRaising and caring for your children is difficult enough without the additional complications that arise when you are bringing up children in a same-sex relationship. Inherent rights afforded to "straight" or heterosexual couples are non-existent for gay couples. The lack of legal rights for those in relationships not recognized by the State of Florida, will effect your property rights, your health care decisions, the distribution of your assets after death, and most importantly, your children.

If you are not the legally recognized or biological parent of a child, there are several legal documents you can utilize to provide you the authority you need.

A Last Will and Testament will enable you to name your choice of guardian for your minor child in the event of your death or incapacity. A Pre-Need Guardian Designation lends additional proof of your choice of guardian for your child(ren). An Authorization and Power of Attorney for Child Care will enable the person of your choice to have the authority to make decisions for and care for your children when you are unavailable. Unavailable may mean incapacity, or being out of town, or otherwise engaged elsewhere.

For additional documents and methods of ensuring that the "non-legal" parent's relationship with his or her children are protected, contact a Jacksonville Gay and Lesbian Estate Planning Lawyer to schedule a time to talk.

January 31, 2012

When if Formal Notice Used in a Florida Probate

There are certain times when a Probate case can use Formal Notice to reduce the time required and other times when it is required. Formal notice is defined by the Florida Probate Code to be notice which is sent by via certified mail to each interested person. Sometimes notice can be by publication when the whereabouts of a particular interested person or entity cannot be determined. This notice by publlication requires a much longer time period to the party to object than the 20 days when an interested party is serverd by formal notice. Some examples of when Formal Notice can or will be used include:

Petition for Administration
Petition to Determine Beneficiaries
Petition to Revoke The Probate of A Will
Petition to Probate Lost Will
Petition to Construe Will
Petition to Remove A Personal Representative
Petition to Surcharge Personal Representative
Petition to Cancel a Devise

January 30, 2012

Is Non Probate separate Property That Increases in Value During a Marriage Part of the Elective Share Calculation?

The 2nd District Court of Appeals for Florida held in McDonald v Johnson that the increase in a company stock value that happened during the marriage can be used to determine the value of an elective share calculation. The lower court ruled that the surviving spouse had no right to discovery of a company's financial information because the company stock was not subject to probate. The 2nd DCA found that Section 742.2155(6)(c) excluded non-martial assets as defined in Section 61.075. Because the increase in value of an asset that happens during a marriage is a martial asset, they concluded that the spouse was entitled to do discovery that was necessary to determine if it would be to her benefit to claim an elective share.

Section 732.2155(6) provides as follows:
Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent's death, in a trust, whether revocable or irrevocable, if:

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent's death;
(b) The decedent was not married to the decedent's surviving spouse when the property was transferred to the trust; and
(c) The property was a non-marital asset as defined in s. 61.075 immediately prior to the decedent's death.

The courts reasoning is as follows:

We conclude that the fact that section 732.2155(6)(c) cites to section 61.075 without a specific citation to the subsection defining non-marital property indicates the legislature's intent that the entire statute, which defines both marital and non-marital property, is to be considered in determining whether the property in the revocable trust was non-marital at the time of death. The definition of marital assets includes "[t]he enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both." § 61.075(6)(a)(1)(b), Fla. Stat. (2010). In other words, if the value of the MCC stock in the decedent's revocable trust increased pursuant to the terms of section 61.075(6)(a)(1)(b), that increase would not be excluded from the elective share under section 732.2155(6)(c). Thus, to the extent the information sought by the surviving spouse is necessary to her determination whether the MCC stock value was enhanced during the marriage due to the efforts of the decedent, it is relevant.

January 15, 2012

Gay Marriage a Looming Possibility in Washington State

gay-marriage-rights.jpgFlorida Gay couples await the possibility of a seventh state to legalize gay marriage, as the Washington State Governor introduced legislation on gay marriage early this month. At a news conference Governor Chris Gregoire stated, "Our gay and lesbian families face the same hurdles as heterosexual families - making ends meet, choosing what school to send their kids to, finding someone to grow old with, standing in front of friends and family and making a lifetime commitment."

For gay couples all over the country, including Florida, a state marriage license is very important. It gives same-sex couples the right to enter into a marriage contract in which their legal interests, and those of their children, if any, are protected by civil law.

For now, those in gay relationships in the Sunshine State will have to make do by protecting their own interests. This can be accomplished through a variety of legal documents. If you are a lesbian or gay man living in or around Jacksonville, Florida, take time to contact a Jacksonville Gay and Lesbian Issues Lawyer who focuses on LGBT documents to ensure that your rights, whether they pertain to health care, property, or your death are protected.

January 4, 2012

Tortious Interference with an Expected Inheritance in Florida

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent's assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

In a recent appeal over this issue it was made clear that it is not enough to have shown that someone engaged in this type of wrongful activity, but also must provide legally admissible evidence of the damage that was caused to the beneficiaries. Failure to show damages, a required element of the claim, subjected the case to a directed verdict and final judgment of dismissal.

If you are considering a claims against someone who has interfered with your expectancy, you should contact a Florida Estate Planning Lawyer who understands the elements of the cause of action as well as the ability to gather and introduce legally admissible evidence.