Florida Probate Litigation Lawyer Blog

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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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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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 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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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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August 5, 2013, will mark the 51st anniversary of Marilyn Monroe’s tragic death due to a drug overdose in 1962. Marilyn was an extremely successful American actress, model, and singer, who became a major style icon for young women during the 1950s and early 1960s. After her death at the age of 36, Marilyn’s Will was filed in the New York Surrogate Court on August 17, 1962, with the largest slice of her assets bequeathed to one Mr. Lee Strasberg. Strasberg, Marilyn’s mentor and acting tutor, received the remainder of Marilyn’s Estate, as well as her personal effects and clothing, a financial and also sentimental gain. Accordingly, the Fourth provision of Marilyn’s Will reads in relevant part:

(d) I give and bequeath all of my personal effects and clothing to LEE STRASBERG, or if he should predecease me, then to my Executor hereinafter named, it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted.
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