Modern estate planning has changed with the fabric of the modern American family. It is more common to now see scenarios such as estranged parents who stay married to raise children, or even married couples that live their lives completely separated from each other. A common question asked by many clients is can a spouse be disinherited from a will?

The general rule is that when a person makes a will they are able to dictate who receives their property after death. However, in Florida it may be very difficult to disinherit your spouse.

Even if the spouse and decedent are separated, the decedent’s surviving spouse is entitled to elect thirty percent of the decedent’s elective estate. This law was enacted to protect the surviving spouse from being left with nothing. The only way to circumvent an elective share would require a prenuptial, postnuptial agreement, or remove assets from the elective share. A prenuptial or postnuptial agreement can waive the surviving spouse’s right to receive a portion of the elective share.

In order to receive an elective share, the surviving spouse must file an election with the probate court. The surviving spouse has up to 2 years after the death to file the election. The election must be filed earlier than 6 months after the spouse has received a copy of the notice of administration.

Once an elective share has been made, the first step of the process is to determine the amount of the share. The elective share is the right to receive an amount of money that is equal to 30 percent of the estate. A spouse who takes an elective share has no right to any specific asset of the estate, and may actually receive less money, or assets, if they had not taken an elective share. It is important to have an experienced attorney, who is familiar with Florida’s elective share law, calculate the value this value in order to receive the greatest benefit.

The elective estate includes the same property subject to probate, including property passing directly to the surviving spouse. In addition, the elective estate may include property held in a trust that was revocable by the deceased spouse. It also includes the deceased spouse’s ownership interest in the cash surrender value of life insurance on the deceased spouse’s life.

The elective estate does not include irrevocable transfers that occur prior to the date this statue (10/1/99)was enacted, and transfers that occur prior to the date of marriage.

Once the amount of the elective share is determined, the share is satisfied as provided in the deceased spouse’s will. If the will does not provide this information, the elective share in satisfied first by property that passes to the benefit of the surviving spouse. This would include life insurance and retirement assets, as well as property held for the benefit of the surviving spouse in a revocable trust. If this does not equal 30 percent, then the surviving spouse will next receive assets from the rest of the estate that were meant to pass to other recipients.

The assets that pass to the surviving spouse outright are valued by their fair market value as of the date the surviving spouse takes possession of the asset. An asset which passes to the surviving spouse by right of survivorship is valued at its fair market value at the time of death.

Florida’s probate laws regarding elective shares are complex. An experienced probate attorney should be used to help determine if the surviving spouse should choose an elective share or not. Contact Jacksonville Probate attorney David Goldman by email or phone at 904-685-1200 for help with Florida’s elective share law.

Throughout the world, the engagement ring is known as a symbol of the love shared between two people who intend to marry. Engagement rings are expensive and often one of the most valuable assets a person will owns.

However, marriages in today’s world don’t always last, and a big issue faced by many estranged couples is who gets to keep the ring if the engagement ends. Who gets to keep the ring is a complicated answer that varies by state. To understand who keeps the ring when a death occurs, it is important to first understand the basic laws that decide who keeps the ring when the engagement is terminated.

In Florida, there are a few factors courts use to determine the answer. The general rule is the ring becomes the personal property of the person who receives the ring once the marriage occurs.

The emerging legal approach regarding engagement rings, used by the majority of states, including Florida, is that an engagement ring is a conditional gift. In Florida courts will rule an engagement ring to be a gift made with the implied condition that a marriage happens. In the Supreme Court case Randall v. Randall, a former wife was allowed to keep her ring after the divorce, “as part of her agreement she fulfilled… when she married the former husband.”

This rule is fairly standard throughout the United States. A person who receives an engagement ring, and marries the ring giver, will get to keep the ring if a divorce occurs later. The issue of who keeps the ring becomes more complex if the marriage never occurs.

The rule in Florida is the person who gives the engagement ring may recover the ring if the person who received the ring terminated the relationship, or if both parties end the relationship mutually. This means the person who gives the ring is allowed to recover it, unless he or she was the one responsible for ending the engagement. The court in Gill v. Shively, held Charles was allowed to recover an engagement ring after Dianne told him she would not marry him because she was not ready for marriage.

So what happens when the person who receives the engagement ring dies before the marriage? In Florida there is no direct case law on the matter. However, other states with probate laws similar to Florida have addressed the issue.

In Pennsylvania an engagement ring is also seen as a conditional promise. Just like in Florida, the ring is returned to the giver if the other party breaks off the marriage. The Superior Court of Pennsylvania in Ruehling v. Hornnung, held this rule to have an implied condition that if the marriage does not take place because of death, the ring shall be returned to the person who gave it.

This holding has no precedent in Florida, however it is likely a court in Florida would rule the same way. The courts here favor giving the ring back to the person who gives the engagement ring, unless he or she is responsible for ending the relationship. Here, the relationship would end due to an act occurring other than the ring giver ending the relationship. Therefore, a court would be likely to return the ring to the person who gave it.

If the marriage does occur and the ring wearer dies, the ring would then stay within the deceased’s estate.

There was an interesting case published today regarding who got the remains of their son’s cremated ashes when the mother and father could not agree. One parent tried to state that the remains should be split and filed a partition case in much the same way as one would do with a home or a piece of land.

In reviewing the case history and what other courts have done, the Florida appellate court agreed with the trial judge who found that “ashes were not property” and hence were not subject to a partition. The court noted that while the division of ashes among heirs by funeral homes may be a common practice where the heirs are in agreement as to the division, a decedent’s remains, including ashes, are not “property” subject to ownership or court-ordered partition.

The opinion starts off discussion comments by William Blackstone in 1753 and moves forward through Florida case law. If you would like to review the case and facts you may read the case here.here. The cite for the case is 39 Fla. L. Weekly D1037a
So if you’re wondering who got the remains- The trial court had ordered that if the parents the co-personal representatives could not agree, the court was going to appoint someone else to make the decision.

We often get questions about contesting a will because of Undue influence in Florida. Undue influence is a cause of action that is used to challenge the validity of a will, trust, or other testamentary document. You can not challenge a will until the person who has created it has died. The conduct of a person charged with undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.

The primary case on this topic is the Estate of Carpenter. This case holds that to prove undue influence in Florida with a will or trust, the person claiming the undue influence must show that the decedent ( the person who died) was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.

In providing this the Florida Supreme Court provided seven criteria to help determine undue influence:

  1. presence of the beneficiary at the execution of the will/trust;
  2. presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
  3. recommendation by the beneficiary of an attorney to draw the will/trust;
  4. knowledge by the beneficiary of the contents of the will/trust prior to its execution;
  5. giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
  6. securing of witnesses to the will by the beneficiary; and
  7. physical possession of the will by the beneficiary after its execution.

While active procurement is necessary to prove undue influence, it may be necessary to look at other factors which may provide for the active procurement. There are many newer cases that have addressed other ways of proving these factors and it is important to fully evaluate the situation.

The presumption of undue influence is a rebuttable one under F.S. §733.107. Once proper execution of the Will(or trust) has been established, the individual challenging the document has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence (more likely than not). If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who provide evidence that the will was not the result of undue influence. Proving undue influence is difficult but proving that it did not occur is also difficult and expensive. The outcome of many cases depends on who has the burden of proof.

Undue influence can be a very expensive claim to pursue and unfortunately it will not make financial sense in all cases. For larger cases where the claims are in excess of $500,000 it may be possible to hire lawyers to pursue these claims on a contingency basis. If you suspect that someone used undue influence to change estate planning documents in which you lost a substantial inheritance, you should contact an Florida trust litigation or Florida will contest lawyer to discuss your situation.

We get many calls from children who want to know where they can get a copy of their parent’s will or find out if they had life insurance.

First, if your parent is alive, you have no right to demand or see a copy of your parent’s will. While it would be a good idea for them to share it with their children there may be reasons why they have chosen not to.

If your parent is incapacitated, and you acting as the agent under a power of attorney or the guardian over the property, you may look for these documents in order to preserve your parents assets or provide for them. A guardian or agent must be careful to avoid taking actions that could be considered changing the beneficiaries. They may also not create a will for someone else.

If your parent has passed and their will is not able to be found you may look to see if your parent had any bank accounts where they may have a safe deposit box. See if they have any documents which indicate if they had an attorney. If you still cannot find the will, you may also check with financial advisors or stock brokers to see if they can help you find out who your parent’s lawyers was. Many people think that they can search the court records to find a parent’s will. In Florida, one can no longer file their will with the court before death.

There is no easy way to find out if your parent had life insurance unless you can find a copy of an old bill. To do this you might check their bank records over the last 12-24 months and continue to watch their incoming mail for tax statements and account updates.

If there is no will or a valid will cannot be found, Florida does have a system for distributing assets to the person’s surviving spouse, children, or other close family members. If you would like to learn more about probate in Florida, you may want to request the Florida Probate Handbook or contact us for more information.

New Florida Statutes §732.806, which is effective October 1, 2013, makes an improper gift to a lawyer in a will or other estate instrument void.

The new statutory provision is here: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.806.html

The new Florida statute in effect tracks 4-1.8(c), Rules Regulating The Florida Bar and incorporates it into the probate code, and makes a violation of the statute a basis for voiding any part of a will, trust or other written instrument which makes an improper client gift to the drafting lawyer or a person related to the lawyer. The statute also provides exceptions to this prohibition, including gifts where the lawyer or other person is related to the person making the gift as well as title to property acquired for value from a person who receives the property which violated the statute.

The previous (common law) rule in Florida probate was that gifts made to lawyers in violation of Bar Rule 4-1.8(c) were not automatically void; however, the gifts created a rebuttable presumption of undue influence by the drafting lawyer.

F.S. §732.806(1) states:.

732.806 Gifts to lawyers and other disqualified persons.– Section (1) Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument ( a will, a trust, a deed, a document exercising a power of appointment, or a beneficiary designation under a life insurance contract or any other contractual arrangement that creates an ownership interest or permits the naming of a beneficiary.), or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.

F.S. §732.806(7)(a) further states in section (7) For purposes of this section: (a) A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer.

As of this month (October 1, 2013), improper client gifts made by a lawyer to him or herself in a testamentary instrument are now void as a matter of law.

One or more of the persons interested in the decedent’s estate usually are unhappy with the personal representative (PR). Some have valid reasons, but others are influenced by sentiments of jealousy or by past rivalry. If you are unhappy with the PR of an estate in which you have an interest, you might be entitled to request the court to remove him or her. However, you must allege at least one of the below discussed causes to remove the PR of an estate. Animosity between you and the PR does not suffice to remove him or her from the appointment.

Causes to Remove the Personal Representative of an Estate

The Probate Code states the causes to remove the PR. Any interested person in the decedent’s estate can request the court to remove the PR if one of the following circumstances arise:

  1. A court enters judgment declaring the PR incapacitated.
  2. The PR suffers a mental or physical incapacity that renders him incapable of the discharge of his or her duties.
  3. The PR fails to comply with any order of the court, unless the order has been superseded by an appeal.
  4. The PR fails to account for the sale of property, or to produce and exhibit the assets of the estate when he or she is required to do so.
  5. The PR wastes or fails to properly administer the estate.
  6. The PR fails to give bond or security for any purpose.
  7. The PR is convicted of a felony.
  8. In the case of a corporate PR, the corporation lacks financial resources.
  9. The PR has an adverse interest against the estate that will or may interfere with the administration of the estate. However, this does not apply if the PR is decedent’s surviving spouse and he or she is seeking to exercise his or her right to the elective share, family allowance, or an exemption.
  10. The Probate Court revokes the decedent’s will designating the appointment of the PR.
  11. The PR no longer has a domicile in the State of Florida and domicile in Florida was a requirement of the initial appointment.
  12. The PR would not now be entitled to appointment.

Procedure to Remove the Personal Representative of an Estate

A proceeding to remove the PR may be initiated by the court, or after an interested person in the decedent’s estate files a petition requesting the court to remove him or her. If you are an interested person seeking to remove the PR and alleging one of the abovementioned causes to remove him or her, then you must file a petition for removal in the probate court administering the decedent’s estate. The court will remove the authority of the PR to act on behalf of the decedent if it grants the petition for removal. Also, the removal of the PR does not exonerate him or her from any liability. It is wise to contact an estate attorney for assistance with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

A family member or someone you care for has just passed away and you have been served with a copy of the notice of administration of his or her estate. The copy should include the name and address of the preferred or nominated personal representative (PR) of the decedent’s estate.1 If you disagree with the qualifications of the PR , then you can object to the appointment.2 However, you must do so within the three months after the date of service.3 Below, you will find the available grounds for objecting to the appointment of the PR.

NON-STATUTORY GROUNDS

Intestate Estate
A decedent has an intestate estate in Florida if he or she does not have a valid will when he or she dies. The appointment of the PR for an intestate estate is a discretionary act of the probate court and is regulated by section 733.301 of the Probate Code. This section states that the probate court must follow the following order of preference when appointing a PR in an intestate estate:

A. Surviving spouse;
B. Person selected by the majority of the beneficiaries;
C. The heir nearest in degree. If more than one applies, the court may select the one best qualified.

Someone with preference to be appointed as the PR of the intestate estate does not have an absolute right to be appointed. The court will not appoint the preferred PR if he or she is not qualified by character, ability, or experience to serve as the estate fiduciary.4 Therefore, you must show that the preferred PR is not qualified to perform his or her duties under the decedent’s estate to prevent his or her appointment.

Testate Estate
A decedent has a testate estate in Florida if he or she has a valid will when he or she dies. In a testate estate, the decedent nominates the PR of his or her estate in the will and the court will afford great deference to the selection. The court has the discretion to refuse to appoint the PR nominated in the will. However, the court will only exercise this discretion in “exceptional circumstances.” Courts have broad discretion in refusing to appoint the selected PR on non-statutory grounds. If you successfully allege hat one of the below circumstances has taken place, then the court will not appoint the nominated PR.

  1. Unforeseen circumstances arise, which clearly would affect the decedent’s decision and decedent had no reasonable opportunity prior to his or her death to change the will.
  2. There are facts at the time of the appointment that would support removal of the PR after he or she has been appointed.
  3. The court concludes that the selected representative does not have the qualities and characteristics necessary to properly perform the duties of an administrator.
  4. There is a dispute between the PR of the estate and one of the beneficiaries that will cause unnecessary litigation and impede the administration of the estate. The court would consider the totality of the circumstances to make a determination.

STATUTORY GROUNDS

  1. If you successfully allege one of the below mentioned statutory grounds, which prevent the appointment of the PR, then the court will not appoint him or her.
  2. Fla. Stat. § 733.303: PR has been convicted of a felony, is mentally or physically unable to perform the duties, or is under the age of eighteen years.
  3. Fla. Stat. § 733.304: PR is a nonresident of Florida and he or she is not a legally adopted child or adoptive parent of the decedent; related by lineal consanguinity to the decedent; a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent or someone related by lineal consanguinity to any such person; or the spouse of a person otherwise qualified under this section.
  4. Fla. Stat. § 733.307: The PR of the estate of a deceased PR is not authorized to administer the estate of the first decedent. On the death of a sole or surviving PR, the court shall appoint a successor PR to complete the administration of the estate.

CONTACT THE Law Office of David M. Goldman PLLC
If you have been served with a copy of a notice of administration of someone’s estate and desire to object to the appointment of the PR, then you should strongly consider hiring an estate attorney to assist you with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

Life is full of instances where taking a decision seems to be extremely challenging. The task is even more difficult if the decision concerns the medical treatment for a loved one that is incapable of deciding for him or her self. Deciding health care matters for patients that cannot do so is emotionally wrenching for families and represents an ethical dilemma for physicians. This difficult scenario is better illustrated with the Terri Schiavo case.

Terry Schiavo Sad Case.

Ms. Schiavo was sustained by artificial hydration and nutrition through a feeding tube for 15 years after suffering a cardiac arrest, triggered by extreme hypokalemia caused by an eating disorder. Ms. Schiavo’s husband, Michael Schiavo, faced a public legal struggle with his wife’s parents and siblings about whether Ms. Schiavo’s life-sustaining medical treatment should be continued or stopped. Mr. Schiavo and the two neurologists that he selected to testify in court stood for the position that Ms. Schiavo’s condition met the criteria for a persistent vegetative state and believed that her treatment should be stopped. Ms. Schiavo’s parents, siblings and the neurologists testifying in court for Ms. Schiavo’s estate stood for the position that Ms. Schiavo’s condition could improve in the future and believed that treatment should be continued.

After years of legal battle, Mr. Schiavo was able to terminate his wife’s life-support treatment. By then, however, his family had been tainted by bitter moments trying to guess Ms. Schiavo’s desires regarding life-sustaining medical treatment. This could have been avoided if Ms. Schiavo had left her written wishes about receiving life-support treatment in a living will. With a proper living will, Ms. Schiavo could have decided under which circumstances she desired life-support machinery, and under which ones she did not.

5 Steps to Create an Efficient Living Will

  1. Appoint a health care agent: You appoint someone as your health care agent with a durable power of attorney known as Designation of Health Care Surrogate. Your agent will have the legal authority to make health care decisions for you if you are no longer able to speak for yourself.
  2. Attach a signed HIPAA release form: You must provide your health care provider with a HIPAA release form so that he can discuss your medical information with your agent. It is wise to provide a release form to all of your physicians and insurance carrier.
  3. Draft instructions for health care: Write instructions for your future health care outlining your wishes about life-sustaining medical treatment in the event that you can no longer speak for yourself. Your agent will be directed to implement your written instructions. This will be your living will.
  4. Revise: Your written instructions must be absolutely clear to be enforceable. Moreover, your written instructions must clearly answer the question about life-sustaining care.
  5. Notify your attending physician: Once you draft your living will, it is your responsibility to notify your physician that you have a one. Also, it is important that you discuss your health care desires with your physician. He or she is likely to be the one carrying for you if your instructions become relevant and is more likely to honor requests that have been communicated to him or her directly.

Important Considerations
Often a living will is part of a more complex document which also contains a designation of health care surrogate and a HIPAA release.
You must sign your living will in the presence of two subscribing witnesses. The witnesses cannot be your spouse or your blood relative. If you cannot sign your living will, then one of the witnesses must subscribe your signature in your presence and at your direction. While you are not required to seek legal advice to prepare a living will, it is a good idea to do so to ensure that the actual instructions for your wishes are stated accurately. For assistance in drafting a living will in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

An agent is someone you chose to act on your behalf. If an agent acts on your behalf and under the scope of his or her authority, then you will more likely than not be bound to his or her decisions. However, your agent has the fiduciary duty to act with the highest degree of good faith on your behalf. If your agent failed to act under the scope of his or her authority or acted against your best interest, then he or she is liable to you and to your successors in interest.
THE PROCEDURE IN YOUR CLAIM AGAINST YOUR AGENT

1. File a petition in court requesting the judge to terminate your agent’s authority, to remove the agent, or to grant an appropriate relief.

2. Show the court that you shared a relationship with your agent where you placed your trust and confidence in him or her; and your agent undertook such trust and assumed a duty to advice, counsel, and/or protect you.

3. Allege that your agent breached one of his or her fiduciary duties.

• Non-mandatory fiduciary duties: You can modify these duties on the document that granted power to your agent to act on your behalf.

i. Duty of loyalty: Your agent must act solely in your interest.
ii. Duty of care: Your agent must perform his or her functions with a high level of competence and thoroughness according to his or her level of skill and expertise

• Mandatory fiduciary duties: These duties are not subject to modification.

i. Duty to act in good faith: Your agent must act in good faith, within the scope of his or her authority, and not contrary to your best interests and expectations as actually known by him or her.
ii. Non-delegation of authority: agent may not delegate authority to a third person to act on your behalf.
iii. Keep records: Your agent must keep detailed records concerning all transactions he or she engages in on your behalf.
iv. Keep your money separated: Your agent must keep his or her money separated from yours. The agent must create and maintain an accurate inventory each time he or she access your income or safe-deposit box.

4. Prove that your agent’s breach caused you to suffer damages. For example, if your agent’s breach negatively affected one of your properties he or she will be liable for the amount required to restore the value of your property to what it would have been had the violation not occurred. The agent must also reimburse you or your successors in interest for the attorney’s fees and costs paid in an action brought against him.

Seek Assistance of an Estate Attorney
Before filing a claim against an agent, it is important to understand the elements of the claim and the available defenses. For example, an agent is not liable if the value of the principal’s property declines unless he or she breaches one of his or her fiduciary duties. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

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