Recently in Elective Share Category

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.

June 30, 2011

Calculation of Your Elective Share in Florida

In Florida a spouse can elect to take 30% of the decedent's elective estate. But what was not answered is what portion of the estate is that 30% applied to? The 5th District Court of Appeal of Florida has answered this question in the case of Paredes v. McLucas .

For example, if you are the spouse of the decedent, your Florida Probate Lawyer should go through the decedent's records to find any claims that he may have had against him or her, and make a total. Next, there should be a total of mortgages, liens, and other similar devices. The claims and mortgages will be added together, then subtracted from the total amount of assets in the decedent's estate. The elective share of 30% applies to only this amount. While this may seem simple there are many assets which are not included in a Florida Elective Share Calculation.

Doing the research is a technical and difficult process, especially in the wake of grieving over the deceased. You could contact a Jacksonville Probate lawyer to determine the exact figure, and the option you as the decedent's spouse can take after that point.

June 3, 2010

Florida Elective Share of a Spouse

Under ideal circumstances a husband and wife will agree to what the surviving spouse should receive when the other dies. However, many times when this doesn't happen the surviving spouse receives a portion of the estate they are unsatisfied with. For example, an elderly couple who marries later in life may want to provide their grandchildren, so they leave 90% of their estate to them and 10% to their wife. In Florida, if the wife is unsatisfied with these conditions, she may make a claim for an elective share.

An elective share is statutorily defined as a right of the surviving spouse to a specific portion of the estate when he/she isn't satisfied with the amount received under a Florida will. Taking a 30% elective share of the estate is something a surviving spouse has a right to in Florida. However, the elective share does not overcome a pre or post nuptial agreement between the husband and wife.

Many times the elective share consists of more than just the net probate estate. The assets subject to the elective share can be different than those subject to a probate and it is a complicated process to calculate what assets should be included in a Florida Elective Share. Therefore, the surviving spouse will receive 30% of the elective estate which include other property interests that pass outside of probate. To discuss what property is subject to the elective share and what amount may be due to you contact a Florida Estate Planning Lawyer or Florida Family Law Attorney to assist in the estate planning process.

December 2, 2008

Elective Share Litigation

In Florida, a surviving spouse is usually entitled to take an elective share of their spouse's estate. This is to prevent one spouse from disinheriting the other. Unless there is a valid Prenuptial or Post Nuptial agreement in place, the surviving spouse is entitled to take 30% of the spouses entire elective estate.

Florida Statute § 732.2035 describes what property is included in the elective share of the decedent's estate.

There are time requirements on filing for an elective share and failure to timely file may result in waiver of this option. To evaluate the effects of electing a Florida Elective Share, Contact a Florida Estate Planning Lawyer who is familiar with Florida Elective Share Litigation.

July 8, 2008

Divorce and Estate Planning

In Florida as with most states, Estate Planning is something that needs to be addressed when one has major changes in their life. This includes divorce and separation.

You only have to think about your spouse or ex-spouse getting all of your assets if you should die to realize the importance of addressing the issue.

In the last year I have seen a number of families who have been adversely affected because of a lack of planning. Several couples were separated for many years when one died and the estranged spouse received a significant portion of the estate. In Florida, even if you change you will to disinherit your spouse, the spouse is entitled to an elective share of your estate. This is equal to 30 percent of your entire estate. If you are divorced in theory, go ahead and file the paperwork to make it official.

When you get a divorce, be sure to change payable of death designations on your retirement accounts, life insurance, bank accounts.

Be sure to revoke any guarantees associated with credit established in both of your names. Change the way property is owned, even if you plan on selling it soon.

The 401(k)s is also a non-probate assets also, but be careful because ERISA, a federal law, protects a surviving spouse. I have seen children loose their parents life insurance because their parent never finalized the divorce and made changes when they separated from their spouse decades ago. If you are getting a divorce be sure that proper paperwork to change the designations is made part of the divorce or separation agreement.

Unless your Florida Divorce Lawyer is also a Florida Estate Planning Lawyer, it is best to have a Florida Estate Planning Lawyer Contact and work with your Florida Divorce Attorney.

March 24, 2008

Florida Elective Share Held Constitutional

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is "any reasonable relationship between the act and the furtherance of a valid governmental objective," and rejected the challenger’s argument that the "far more rigorous analysis" of whether the statute is "reasonably necessary to protect the public." The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

March 14, 2008

Florida Wills

How can you tell if a Will has been altered?
Most of the time you cannot tell by simply looking at the document. Often these documents are "tampered with" behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
In Florida, an adult child can be cut out of a Florida Will . So long as the parent is competent. An adult child can be removed from a Last Will and Testament (or a Florida Revocable Trust) for any reason. If a child is not mentioned in a Florida Will , it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Florida Will , may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor child.

When is litigation the only option?
Often litigation is cause by a failure to communicate. You will find that if people communicate and treat each other fairly or as they would want others to treat them any disagreements can be resolved amicably and without the need for lawyers. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent's assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent's estate. The right of the surviving spouse to receive from the decedent's estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.

January 3, 2008

Florida Probate FAQ by Florida Bar

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?
If you have questions about a Florida probate case please contact a Florida Probate Lawyer.

November 12, 2007

Do it yourself Estate Planning: Bad News Part 3

Jacksonville, Jacksonville Beach, PVB, Ponte Vedra Beach, Orange Park, Florida WillA Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?

Recently I saw a Florida Probate case, where a mistake was made in a will that changed a homestead to non-homestead property. Luckily there were no creditors, but in the even that there were creditors, the home could have been lost because of this mistake.

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

October 1, 2007

Common Law Marriage and Estate Planning

Florida Common Law Marriage, Jacksonville Common Law, Orange park, Ponte Vedra BeachAs a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

August 28, 2007

Florida Enhanced Life Estate Deed

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Jacksonville Duval Clay Orange ParkWhy Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Continue reading "Florida Enhanced Life Estate Deed" »