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Florida Probate Blog

Yearly Archives: 2009

Same Sex Couples and Probate

Written by on Jan 12, 2009| Posted in: Estate Litigation

How to Overcome the Disparate Impact of Succession Statutes, Inheritance Laws, and the Uniform Probate Code Laymen and probate practitioners may debate issues concerning same sex marriages. However, what is not debatable is that same-gender couples lack true donative freedom under current probate law. Brian Edwards explores the problems facing same sex couples in the enaction and enforcement of their testamentary plans in his recent and well written article, True Donative Freedom: Using Mediation to Resolve the Disparate Impact current Succession Law Has on Committed Same-Gender Loving Couples, 23 OHIO ST.J. ON DISP. RES. 715 (2008). Edwards suggests that mediation can be used to create a plan for same sex couples for enforcement of their donative intentions. He also argues that mediation can be used to solve problems and address other issues that typically arise between the surviving blood relatives and the surviving partner in a committed same sex relationship.

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Paternity: Can a Decedent’s Body Be Exhumed for Genetic Testing?

Written by on Jan 8, 2009| Posted in: Estate Litigation

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child. The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don’t Throw That Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008). Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, […]

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No Contest Clauses

Written by on Jan 6, 2009| Posted in: Probate Litigation

Alabama, Ohio, and 13 Other States Need to Follow Florida’s Lead Many decedents in a variety of jurisdictions place no contest provisions in their wills in order to prevent their family members from fighting over the inheritance following death. These clauses, sometimes referred to as in terrorem clauses are defined by Black’s Law Dictionary as ‘[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’ For example, I have seen the clauses similar to this in many wills in an effort to avoid will contests: “If any beneficiary under this will in any manner, directly or indirectly, contests or challenges this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner […]

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Mediations and Settlement Agreements

Written by on Jan 6, 2009| Posted in: Estate Litigation

Third District Court of Appeals Opinion Serves as a Reminder to address crucial issues. A candid discussion between counsel regarding settlement and mediation is generally a good idea at some point in any type of litigation, especially will and trust contests and similar probate issues. Since these cases are almost always inter-family case, settlement should be attempted to try to keep the family intact. A good settlement is usually a division of assets that neither side particularly likes, but with which both sides can live. It is generally a good idea to include at least a discussion of these items in any probate settlement agreement: • A mutual release; • Determination of the validity of the will (if it is agreed that the will is invalid, then a prior will must be admitted to probate and the estate fiduciary must be appointed. If the will remains valid, the estate fiduciary […]

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