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.

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

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.

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.

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.

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 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

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.

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.

In Florida, a Durable Power of Attorney (DPA) is a document that allows you to designate someone to act on your behalf if you ever become incapacitated. The person creating the DPA is known as the “principal” and the person receiving authority to act on your behalf is known as the “agent” or “attorney-in-fact.” Depending on the DPA, your agent will have authority to handle your financial transactions or to oversee your medical care.

Steps to Create a DPA

DPA for your finances: With this type of durable power of attorney, you can give a trusted person as much authority over your finances as you like. Your agent can handle simple tasks like sorting through your mail, or more complicated ones like watching over your investments. To create a Financial DPA follow the following steps:

Contact Information