Florida Probate Litigation Lawyer Blog

A Surviving Spouse’s Right to the “Elective Share” in Florida

January 2, 2014 | by Chepenik Trushin LLP

Florida is one of the many separate property states that give a decedent’s surviving spouse an “elective share” of the decedent’s property. This share of the estate is but one of several supportive mechanisms for surviving spouses in Florida. Others include homestead, social security, and employee pension plans. The term “elective share” implies the choice, or “election,” that state statutes typically grant the surviving spouse after the decedent’s will has been admitted to probate. The surviving spouse can either take under the specific provisions of the decedent’s will, or the spouse can renounce the will and take a statutory, fractional share of the decedent’s estate. In the usual case, the decedent has already bequeathed to the surviving spouse a majority (or at least a significant amount) of his or her estate property, leaving the concept of the “elective share” out of the picture. In more unusual cases, however, the decedent completely disinherits the surviving spouse under his or her will, or simply designates a very small portion of his or her assets to the surviving spouse. The latter is most commonly where elective share statutes come into play, especially when the decedent passed away leaving a substantial amount of wealth behind.
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Transferring Title of a Decedent’s Vehicle Under Florida Law

December 26, 2013 | by Chepenik Trushin LLP

Vehicles often comprise part of a person’s estate after they pass. It is sometimes possible to distribute vehicles very soon after a person’s death, sometimes even without an order from the probate court.

If the beneficiary of the vehicle is either the surviving spouse, or, if there is no surviving spouse, the children of the decedent and the decedent was domiciled in Florida at the time of death, the beneficiary may have a right to have the vehicle designated “exempt property.” Fla. Stat. §732.402(1). Exempt property is protected from all claims against the estate, except secured interests on the property itself, and can be distributed directly to the surviving spouse or children after the court authorizes the designation of the property as exempt. Fla. Stat. §732.402(3). A vehicle can be designated as exempt property by filing a Petition for Determination of Exempt Property with the probate court. Fla. Prob. R. 5.406. Up to two vehicles can be designated as exempt property if individually they (1) weigh less than 15,000 pounds, (2) are held in the decedent’s name, and (3) were regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. Fla. Stat. §732.402(2)(b). If a surviving spouse or children of the decedent do not file a petition for determination of exempt property on or before the later of the date that is four months after the date of service of the notice of administration or the date that is forty days after the date of termination of any proceeding involving the construction, admission to probate, or the validity of the will or involving any other matter affecting any part of the estate, they will be deemed to have waived their right to the exempt property status. Fla. Stat. §732.402(6). After a court authorization, the exempt property may be distributed directly to the surviving spouse or children.
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Unfortunate Death of Real Estate Developer Can Teach Lessons for the Future

December 19, 2013 | by Chepenik Trushin LLP

An interesting case recently surfaced involving the $200 million estate of a North Carolina real estate developer Henry Faison. Mr. Faison created a will devising his estate in 2000, but decided to make changes last year. Unexpectedly, Mr. Faison passed away in his office just before signing the second will. As should be expected, multiple parties have an interest in Mr. Faison’s large estate, and a lawsuit claiming unjust enrichment on the part of the 2000 will’s primary beneficiary was filed in the courts to determine which of the two wills should control distributions of the estate’s assets. This begs the questions of what the probable result of this lawsuit would be were it decided in Florida, and what can one do to avoid a similar situation?
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How to Execute a Power of Attorney—Without a Signature

December 12, 2013 | by Chepenik Trushin LLP

The Florida legislature recently saw fit to amend the Florida Power of Attorney Act (the “Act”). The revised Act, reflected in Ch. 709 of the Florida Statutes, became effective on October 1, 2011, as lawmakers re-wrote the entire chapter in order to conform more closely to the Uniform Power of Attorney Act. While only 13 states and the Virgin Islands have enacted the Uniform Power of Attorney Act, two more states (Mississippi and Pennsylvania) introduced it this year alone. These changes to Florida law, some of which are described below, reflect a nationwide trend that is expected to pick up steam in the coming years.
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In Florida, You Cannot Manipulate a Trust with an Adult Adoption

December 6, 2013 | by Chepenik Trushin LLP

Florida is one of many states that allow adult adoption, which is often used to allow a stepparent to adopt a stepchild later in life. See Fla. Stat. § 63.042. Florida has, however, limited this ability in certain circumstances, such as adopting one’s spouse. See Fla. Stat. § 63.042(2)(c) (finding that a married person may not adopt his or her spouse). But, unlike other states, adoptees are presumed to be descendants of their adoptive parents for the purposes of intestate succession and class gifts. See Fla. Stat. § 732.108; see also Fla. Stat. § 732.608. This is unlike other similar provisions, such as the Uniform Probate Code §2-705, which limits an adult adoptee’s right to inherit through class gift provisions of wills and other governing instruments.
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Fiduciary Duty of the Personal Representative of an Estate

November 27, 2013 | by Chepenik Trushin LLP

Billionaire Ron Perelman is being accused of spending up to $30 million in legal fees from his daughter’s inheritance defending unsuccessful lawsuits against his former in-laws. After the death of Perelman’s second ex-wife, Claudia Cohen, he was appointed the “executor” of her estate, which in Florida, is referred to as the “personal representative” of an estate. Their daughter, Samantha, was named the beneficiary. Claudia Cohen was the daughter of Robert Cohen, who created the Hudson County News Company, which operates a chain of newspaper and magazine retail stores. Perelman claims that Claudia’s father and brother cheated Samantha out of a share of the family’s lucrative media business and filed at least four lawsuits after Claudia’s death. The Cohens claimed that Perelman just wanted to obtain part of the $80 million divorce settlement that he lost to Claudia and that Claudia had a great relationship with her family. As proof of that, the Cohens contended that Claudia’s will expressed her love for her parents, brother, and sister-in-law and her desire for her parents to have liberal visitation time with Samantha.
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Do Florida Courts Have Jurisdiction Over Foreign Trusts?

November 22, 2013 | by Chepenik Trushin LLP

When a trust has been executed in a foreign jurisdiction by a settlor who subsequently becomes a resident of Florida, such a trust will often recite that the law of the foreign jurisdiction controls. The fact that a resident decedent leaves little or no property in the state is not necessarily a bar to administering the decedent’s estate in Florida. A domiciliary administration could be established in Florida, and the property could be administered where it is located under ancillary proceedings. However, section 736.0205, Florida Statutes, provides that if a party objects, the court shall not entertain trust proceedings under section 736.0201, Florida Statutes, for a trust registered, or having its principle place of administration, in another state, except under limited circumstances. These circumstances include situations in which all interested parties could not legally be bound by litigation in the courts of the foreign state where the trust is registered or has its principle place of administration. Fla. Stat. § 736.0205. Furthermore, the court may condition a stay or dismissal of a foreign trust proceeding on the consent of any party to jurisdiction of the state where the trust is registered or has its principle place of business. Id. The court may also grant a continuance or enter any other appropriate order. Id.
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DOMA’s Impact on Floridians

November 18, 2013 | by Chepenik Trushin LLP

In United States v. Windsor, the Supreme Court took a historic step towards providing equality to all, regardless of sexual orientation. While a significant victory for same-sex couples across the nation, it must also be understood that this decision is somewhat limited in scope. As the Miami Herald noted, this Supreme Court “ruling leaves Florida same-sex couples in limbo,” due to the fact that same-sex marriages are still not permitted under the Florida Constitution. The Court’s decision affirmed the Second Circuit Court of Appeals’ ruling that Section Three of The Defense of Marriage Act (“DOMA”), which stated “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife,” was unconstitutional. While a positive step for same-sex couple seeking equal treatment, this decision still leaves same-sex couples at the mercy of their state’s legislature. In Florida, for example, Governor “Rick Scott made clear [] that he intends to enforce the same-sex marriage ban that voters approved in 2008.” . Additionally, the Supreme Court did not rule all of DOMA unconstitutional, meaning that, pursuant to Section Two of DOMA, states still do not have to respect same-sex marriages consummated in other states.
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Florida 5th District Court of Appeals Upholds Spendthrift Trusts as Constitutional

November 9, 2013 | by Chepenik Trushin LLP

Different types of trusts offer varying levels of protection from creditors, and just because an individual is the beneficiary of a trust containing a significant amount of assets, does not mean that creditors of that individual will be able to go after those assets if the individual fails to pay his or her debts. Mr. and Mrs. Zlatkiss found this out the hard way when they loaned $350,000 to All American Team Concepts, LLC. Louis Steinmetz, the company’s principal, signed a personal guaranty on behalf of All American Team Concepts, which seemed like a safe bet to the Zlatkisses due to Steinmetz’s trust worth over $6 million. The trust, however, contained a spendthrift provision, which, if valid “prevents creditors or assignees of the beneficiary from reaching any of the trust funds until they are dispersed to the beneficiary.” Zlatkiss v. All American Team Concepts, LLC, 2013 WL 2359108 (Fla. 5th DCA May 31, 2013) (citing Miller v. Kresser, 34 So. 3d 172 (Fla. 4th DCA 2010)). Once Steinmetz defaulted on the loan, the trustee of Steinmetz’s trust, Wells Fargo, refused to make distributions to cover the debt. The Zlatkisses claimed that Florida Statute sections 736.0501-.0507, which recognize the enforceability of spendthrift trusts, violated the Florida Constitution by preventing access to the courts. Florida Statute § 736.0501 provides that “the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary’s interest by attachment of present or future distributions to or for the benefit of the beneficiary or by other means.”
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Estate Planning for Same-Sex Couples Post-DOMA

October 24, 2013 | by Chepenik Trushin LLP

As ABC’s hit sitcom “Modern Family” becomes a reality for many American families, the estate planning industry must evolve as the number of same-sex marriages increases. A Gallup poll released on July 29, 2013, revealed that the majority of Americans, 52%, would vote in favor of legalizing gay marriage in all 50 states. A more recent poll by Civil Beat shows that 44% of voters in the state of Hawaii would vote to legalize gay marriage in the state, a rapid increase from the 37% favorability in an April 2012 poll on the same issue. Other recent reports reveal that New Jersey is poised to become the 14th state in the U.S. to recognize gay marriage, and Hawaii to become the 15th. Although support for gay marriage is growing, the current inconsistency in states’ recognition of gay marriage posits important estate considerations for legally married, same-sex couples.
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