The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant’s argued that the plaintiff’s complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. “In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will.” The probate court agreed with the defendant’s and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court’s ruling, even though the language of the appeal suggested that the Court agreed with the defendant’s reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

Joseph Percope has written an article The Impact of Co-ownership on Florida Homestead in the Florida Bar Journal that discusses the tree kinds of homesteads defined in a 1997 Florida Supreme Court case: The tax exemption; The Protection from Creditors; and The restrictions on alienation of homestead property in Florida.

While most are primarily concerned with their tax breaks, as a Florida Estate Planning Lawyer we often deal with the second two more often in our planning. We see families attempting to avoid probate by adding kids on to deeds all the time. We also see parents who own part of their children’s homes. The problem begins when in either of these situations one or more of the owners does not live in the home. The home or at the ownership of the person not living in the home is subject to the claims of their creditors.

When no ownership percentage is specified, Florida will apply equal percentages of ownership to each person named on the deed. If a single person adds their child onto their deed as joint tenants with rights of survivorship, 50 percent of the equity in the home will be exposed to the creditors of the child who is not living in the home.

Historically a Florida Will could not be changed and had to be strictly complied with by in a Florida Probate.

A recent change to Florida Probate allows for the court to step in and change the terms of a person’s will when there is no question about what the terms when there is clear evidence that what the testator intended.

Anyone can ask a court to change the terms of a Florida Will when there is clear and convincing evidence that a mistake of fac or mistake of law caused the will to reflect something other than the testator’s true intent.

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 and avoid a Probate in Florida. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process in much the same way as a bank account with a beneficiary designation.

Jacksonville Duval Clay Orange ParkWhy Use an Enhanced Life Estate Deed?

The Florida 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.

The fight for Jacksonville equality is reaching its crescendo. The Jacksonville City Council will soon consider legislation presented to them which if passed would offer protections to the LGBT community. Currently, the Jacksonville human rights ordinance does not provide protection for the gay community. That means that those persons who are gay, lesbian, and transgender have little to no shelter from discrimination in the workplace, housing, and public accommodations.

There have been several Florida cities and municipalities that have amended or put in place legislation to protect this vulnerable segment of society. If passed the bill in Jacksonville would prohibit discrimination based on sexual orientation and gender identity.

Almost two weeks ago, Tampa Mayor, Bob Buckhorn signed legislation that will put into place a Domestic Partnership Registry. Similar registries exist in Palm Beach County, Miami-Dade County, and more recently Orange County.

Florida statutes define probate assets as those assets subject to a probate administration. There are several types of Probate in Florida which are discussed in our Free Florida Probate Handbook that you can request.

Often it is easier to define which assets are not subject to probate.

In Florida any asset with a surviving joint owner, valid payable on death designation, or contract clause which defines what happens to the asset upon death are not subject to probate. Often these include life insurance policies, annuities contract or retirement account with a transfer on death clause, jointly owned bank accounts, real estate with and valid beneficiary designation clause. One of the most common items that is not subject to probate is a Florida homestead. While a homestead is not devised through probate typically, title companies will often require it to be dealt with in a Florida probate to issue title insurance. The good news is unless you messed up your will or other documents, a Florida Homestead will not be subject to the claims of your creditors or the creditors of your beneficiaries if it is their homestead.

There are very limited opportunities to establish paternity after the death of a parent but it is possible to do so as long as the mother was not married at the time the child was born and no paternity has been previously established.

According the Florida Department of Heath, if a birth record contains an error it may be possible to correct the record depending on the type of correct and the age of resistant, documentary evidence may be required to support the correction.

Once the father has died it is still possible to establish paternity by one of the following

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out-of-wedlock, even though the attempted marriage is void.

It has been many years since the regional divisor has been updated. For the last several years the penalty period was calculated using an outdated nursing home cost of $5000. As of now, the divisor has been raised from $5000 to $6880 in Florida (Florida Administrative Code)

What does this mean? If one does property planning, they can give away $6880 and only have a 1 month penalty. This becomes important when doing planning for individuals who have nursing home exposure.

This will significantly increase the amount of money most people could save by doing elder law planning in Florida. As you age it is important to consider both Florida Estate Planning and elder law when structuring your plan.

John B. Conner has written a Law Review article in the Estate Planning and Community Property Law Journal titled “DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON’S DIGITAL ASSETS AFTER DEATH”

The article starts off discussing issues of digital assets and estate planning by defining digital assets and then discussing issues in estate planning created by digital assets.

It goes on to talk about how websites are dealing with digital assets and privacy acts as the relate to deceased users with social networking, web-based email, blogs and other online content.

Contact Information