Marriage and Homestead in the Florida Probate Process

What if my deceased spouse and I were not living together at the time he or she passed away?  Do I still have Florida homestead protection from creditors?

I recently had a case where this issue arose.  Although these questions may appear to be ripe for further problems and complex factual disputes regarding the quality and status of the marriage, Florida statutes and courts have made this issue fairly clear.  If you are married at the time of your spouse’s death, you may invoke your surviving spousal rights for homestead protection on your deceased spouse’s home.  Florida does not recognize separations or any other problems that may have existed during the marriage in making a determination of homestead status.  In Florida, you are either married, or you are not.  As they say, “you cannot be a little bit pregnant.”

A surviving spouse’s homestead rights stem from the Florida Constitution, specifically, Article X, section 4, which states in relevant part:

(a)    There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, … if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child….

The court in In re Colwell, 196 F.3d 1225 (Fla. 4^th DCA, 2009) addressed the homestead statute.  In this case, the spouses had been separated for over three years and had even gone to the point of acquiring separate residences.  Nevertheless, the court held that each spouse could claim separate homestead exemptions even though they were separated and lived in separate homes.  As a result, the creditors of the deceased spouse that had filed claims against the estate could not seek relief against the homestead real property.

Florida courts go to great lengths to protect the surviving spouse, specifically during probate and estate proceedings. The loss of a loved-one can be an extremely difficult process; it will be in your best interest to consult with an attorney (for legal and streamlining purposes) to unclutter the details of the Florida Probate code.

New Changes to Spousal Shares in Florida Intestate Estates

Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse.

Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is:

(1)  If there is no surviving descendants of the decedent, the entire intestate estate.

(2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.

(3)  If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

After October 1, 2011, if a married person dies without a Will and is survived by a spouse and children, all of whom are also the children of the surviving spouse, then the surviving spouse will receive 100% of the deceased spouse’s probate estate. This is a fairly significant change to Florida Statute §732.102 (2). The reasoning behind the change appears to be that a married couple with children born of their marriage would most likely want their spouse, who is also the mother or father of their children, to inherit 100% of their estate. However, this may not always be the case, especially where one spouse comes from a wealthy family who prefers that their wealth be passed along through their family blood lines.  If all the money goes to the surviving spouse and he or she gets remarried then perhaps none of the family money is passed down through the blood line.  If it is important to avoid this conclusion, then estate planning should be done to ensure proper disposition of the estate.

This new law is in line with the Florida legislature’s history of implementing increased protection for surviving spouse’s in the State of Florida (e.g., elective share, homestead protection, exempt property, family allowance, and pretermitted spouse statutes).

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules.

The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the petition to determine incapacity is dismissed for lack of a finding of incapacity, and there is a further finding that the petition was filed in bad faith, the court may assess costs against the petition pursuant to Fla. Stat., 744.331(7)(c).

The court has the authority to declare a person unable to perform or exercise the following rights (but not delegate them to the guardian): to marry; to vote; to personally apply for government benefits; to have a driver’s license; to travel; to seek or retain employment.  Other rights that may be removed and may be delegated to the guardian include the following: to contract; to sue and defend lawsuits; to determine his or her own residency; to consent to medical treatment; to manage property or make any gift or disposition of property; and to make decisions about his or her social environment or other social aspects of his or her life.

Once the petition has been filed with the court, along with payment all of the proper filing fees, the court appoints an attorney to represent the alleged incapacitated person (“AIP”).  This court-appointed attorney for the AIP represents the expressed wishes of the AIP consistent with the rules regulating the Florida Bar.  In addition, the court appoints an examining committee to determine the mental capacity of the AIP.  Depending on the county where the proceedings are held, the examining committees are either selected by the mental health clerk and appointed by the court or they are selected from a local list by the attorney for the proposed guardian.  Each committee member performs an assessment of the AIP and prepares a report, which is provided to the court and appropriate counsel.  The court relies heavily on these committee reports in making its own determination on whether the AIP is, in fact, incapacitated.

While making a determination on an AIP’s incapacity, the court will always consider whether there is a less restrictive alternative to a guardianship.  One such alternative is a durable power of attorney.  If the person has the mental capacity to execute a durable power of attorney document, the guardianship may be avoided.  However, a durable power of attorney does not provide the attorney-in-fact with the power to force the maker of the document to do anything that the maker does not want to do.  It simply provides the attorney-in-fact with the right to perform the tasks outlined in the document.

Another such alternative is a designation of health care surrogate.  If such a surrogate has been designated in writing, he or she has the authority to make the medical decisions for the person.  Some documents also provide the surrogate with the right to make decisions on the person’s mental health as well.

If a person’s quandary pertains to his or her assets and those assets are jointly owned, the other joint owner can act without the consent of the other, depending on the type of assets it is.

Fla. Stat. §393.12 provides for a Guardian Advocate for developmentally disabled persons.  Such a guardian may be appointed without the necessity of a determination of incapacity.  Additionally, this guardian may make all medical and residency decisions.  Fla. Stat. §394.4598 provides for the appointment of guardian advocate for the purposes of mental health decisions only.  This guardian is appointed when a patient in a mental health facility has been found to be incompetent to consent to his treatment.

How can a minor child inherit from an estate? 

In Florida probate,  money and property is often left  to minors.  These gifts to minor can be through  a will or trust, or a child can take through intestacy (where there is no will).  However, Florida probate laws often requires that a guardian ad litem be appointed to represent the minor child’s financial interest.

While Florida has laws for guardians of persons and property, oftentimes a minor only needs to have a Guardian Ad Litem appointed.  For all civil matters generally, a court must “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or…make such other order as it deems proper for the protection of the infant or incompetent person.”  Fla. R. Civ. P. 1.210(b).  Recently my office represented a client is a trust termination case which came from an undue influence contest.  Through mediation the matter was able to be resolved by all of the parties, however, the trust was to provide to the minor’s mother, the minor child and final beneficiaries.  Through actuarial tables we were able to determine the percentages due to the minor, her mother, and the ultimate residual beneficiary.

Despite all the parties to the underlying action agreeing upon the settlement amounts calculated, Courts are very sensitive to the rights of minors.  To ensure transparency, compliance with the Florida probate laws, and justice, I petitioned the Court to appoint a Guardian Ad Litem to review and recommend the most advantageous receipt of the funds for the minor even though the minor is living with her mother and father.  The purpose of a guardian ad litem is to investigate and protect the rights of the person he or she is appointed to represent.  In my recent case, the court appointed guardian met with the minor and her mother and father to hear about their hopes, goals and plans.  He further met with them and a financial planner in his investigation.  Upon completion of his investigation, he issued a report to the Court where he advised the settlement amount was fair to the minor, as well as a plan as to how the assets were going to be held for the benefit of the minor.

The failure to appoint a guardian ad litem generally means the proceedings are voidable as to the minor’s interests.  This means that, if an ad litem had not been appointed and issued a report, the minor could come back and potentially challenge the settlement of the Florida probate litigation we were able to conclude at mediation.

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED?

Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida.

You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an intestate estate (estate without a Will) and devisee in a testate estate (estate with a Will).

In the event you receive a Notice of Administration, and believe that the person who was named as Personal Representative is not qualified to hold that position, it is possible to have a personal representative removed and a successor personal representative appointed. 

Florida Statute 733.504 states that a personal representative may be removed and letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:

(1) Adjudication that the personal representative is incapacitated.

(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.

(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.

(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

(5) Wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose.

(7) Conviction of a felony.

(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.

(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.

(12) The personal representative would not now be entitled to appointment.

Also, it is important to note that pursuant to Florida Statute 733.303, a person is not qualified to act as a personal representative if the person:

(a)  Has been convicted of a felony;

(b)  Is mentally or physically unable to perform the duties; and

(c)  Is under the age of 18 years.

The personal representative has specific fiduciary duties and obligations to the beneficiaries of an estate.  If a beneficiary believes that there has been mismanagement, self-dealing, divided loyalties, conflict of interest, or a breach of fiduciary duty by the personal representative of an estate, it is imperative that the beneficiary retain skilled and competent counsel to discuss their rights as the beneficiary of an estate to ensure that the beneficiary receives the appropriate distributions and to ensure that the personal representative is performing all of their fiduciary duties according to the Florida Statutes.  If the personal representative has breached their fiduciary duties, then competent counsel could have the personal representative removed, and request that the Court appoint a successor personal representative.

What is a Will Contest?

A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament.

For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. It is a serious mistake to assume a Last Will and Testament that appears to be signed correctly actually complies with Florida law. In fact, the burden of proof is initially on the person challenging the Last Will and Testament to prove that it was not signed in accordance with Florida law. Florida Statute Section 732.502 requires that a Last Will and Testament is in writing, that it is signed at the end by the Testator (or by another person at the testator’s direction), and that the testator signs the Last Will and Testament in the presence of two subscribing witnesses. One critical factor is that the witnesses sign the Last Will and Testament in the presence of each other. To prove whether a Last Will and Testament was improperly signed requires skilled and careful cross-examination of the witnesses who were present at the time of the signing of the Last Will and Testament.

The major grounds for contesting the validity of a Last Will and Testament are undue influence and lack of mental capacity or lack of testamentary capacity.

CONVERSION OR CIVIL THEFT?

Probate and Trust lawsuits, at times, involve someone holding a power of attorney who oversteps their authority and improperly takes possession of property, assets or money of another.  In this situation, they may have committed conversion and/or civil theft.

The Restatement of Torts defines conversion as an intentional exercise of dominion and control over a chattel (property or asset) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  Under Florida case law, conversion is defined as the wrongful control of another person’s property, assets or money.  Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994).  The essence of the tort of conversion is the exercise of wrongful dominion or control over property, assets or money to the detriment of the rights of the actual owner.  Goodwin v. Alexatos, 584 So.2d 1007 (Fla.5th DCA 1991).

In a conversion claim, the Plaintiff has the burden of proof to establish, by a preponderance of the evidence:

1)    a specific and identifiable piece of property, asset or money;

2)    an immediate possessory right to the property, asset or money;

3)    an unauthorized act which deprives the Plaintiff of that property, asset or money;

4)    a demand for the return of the property, asset or money;

5)    a refusal to return the property, asset or money.

A conversion claim differs from a claim of civil theft, in that Florida Statute 772.11 entitles the Plaintiff to an award of treble damages plus reasonable attorney’s fees and court costs.  Felonious intent to commit the conversion of the property, asset or money is required to claim civil theft.  Also, the statute requires written notice to the potential Defendant of the claim of civil theft which provides the potential Defendant with a “safe harbor.”  If the claim is then filed under the statute, the Plaintiff is required to establish the elements of the claim by “clear and convincing” evidence, rather than the conversion standard of “preponderance of the evidence.” 

Probate litigation and trust litigation frequently involves conversion and civil theft allegations.  The conduct of the person in possession of the money as well as the probate lawyers experience will help determine whether the lawsuit to be filed is conversion or civil theft.

Florida enacts legislation allowing challenges to “deathbed marriages.” 

It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010. 

The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action have been litigated under this statute.

Florida Statute Section 732.805

Spousal rights procured by fraud, duress, or undue influence.

—

(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

(3) A challenge to a surviving spouse’s rights under this section may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material.

(4) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.

(5) In all actions brought under this section, the court shall award taxable costs as in chancery actions, including attorney’s fees. When awarding taxable costs and attorney’s fees, the court may direct payment from a party’s interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.

(6) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, it received written notice of a claim pursuant to this section.

(a) The notice required by this subsection must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, or a properly directed facsimile or other electronic message.

(b) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, the notice shall be directed to the principal office of the financial institution or insurance company.

(c) Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given.

(7) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.

(8) Unless sooner barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an interested person is barred from bringing an action under this section unless the action is commenced within 4 years after the decedent’s date of death. A cause of action under this section accrues on the decedent’s date of death.

The battle over a Will can be more like a battle of wills.

“It’s the principle of the matter”

We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially - to achieve a measure of satisfaction and closure through the judicial process.    Read the rest of this entry

…call for desperate measures 

The Marchman Act:  Emergency help for a drug-addicted family member.

Recently I heard of a terrible story involving a promising college student who became addicted to illegal narcotics and dropped out of school.  She began engaging in behavior that was inconsistent with that of her prior twenty years, yet despite her obvious decline her parents were powerless to stop it.  It seems that every time they sought help from the authorities they were reminded that, legally, their daughter was an adult.  If she were in possession of drugs they could arrest her, but there weren’t other options presented.  Meanwhile, her abuse of narcotics eventually led to her death.  Needless to say, her parents were devastated.

While I did not know the parents personally, the story bothered me.  Here were two individuals who deeply loved their only child, yet lost her because of her drug addiction and their perceived inability to intervene.  Read the rest of this entry