First District Upholds Integrity of Contracts in Recent OpinionA prenuptial agreement is a contract entered between partners before marriage, or civil unions in those jurisdictions recognizing those. The contract’s contents typically include provisions for the division of marital assets and spouse support in the event the relationship terminates.

Prenuptial agreements usually arise in two very different legal contexts: (1) divorce and (2) probate. In Florida, the rules applying to these two vastly-different courtrooms are exclusive of one another. My experience has been dealing with prenuptial agreements in the probate arena, where the marital relationship has been severed not by divorce, but by the death of one of the spouses. (more…)

Washington joins other states in growing trend

The doctrine of de facto trustee is gaining popularity in its recognition by state court’s and trust and estate jurisprudence. A person is a de facto trustee where the person (1) assumed the office of trustee under a color of right or title and (2) exercised the duties of the office. A person assumes the position of trustee under color of right or title where the person asserts “an authority that was derived from an election or appointment, no matter how irregular the election or appointment might be.” A de facto trustee’s good-faith actions are binding on third persons. Because the purported successor trustee in Allen Trust acted as trustee and assumed its office through an appointment it reasonably believed to be effective, it was a de facto trustee and was entitled to compensation for its services. Washington recently joined the growing number of jurisdictions using the de facto trustee concept (Alabama, New York, Oklahoma, and Oregon all recognize the concept.) (more…)

Extrinsic Evidence Sufficient to Construe Settlor’s Original Intent

The new Florida Trust Code recognizes the recent increase in use of long-term trusts, thereby requiring greater flexibility in the restrictive rules that apply concerning when a trust may be terminated or modified other than as provided in the instrument. The governing principal of the trust code is to carry out the settlor’s intent. The power to modify the terms of a trust appears in a variety of sections of the new trust code. For example, a court now has discretion to modify an irrevocable trust because of circumstances not anticipated by the settlor. In exercising its discretion the court is to consider any spendthrift provision but is not precluded from modifying the trust for that reason. Fla.Stat. §736.04113. Also, a court may modify a trust if such action is in the best interest of the beneficiaries. Fla.Stat. §736.04115. (more…)

Guardianships are an area of my practice that requires a lot of finesse when counseling clients who are serving conflicting roles when trying to make decisions in the name of the ward.

What is a guardian?

Typically, a guardian is a person (or sometimes an entity, such as a financial institution), who is appointed by the court to handle another person’s real and personal property and/or to take care of the person (referred to as “the ward.”) (more…)

Evidence Must Be Compelling to Disinherit

What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will. Fla.Stat. §732.302. (more…)

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. (more…)

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, as personal representative of the estate. Shortly after the will was admitted to probate, Terri L. MacMahan filed a petition in the probate court asserting that she is Kingsbury’s biological child, and requested for construction of the will as well as a determination of beneficiaries under the will. (more…)

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 provided herein as if that contesting beneficiary has predeceased me without issue.” (more…)

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 can continue on and the estate may be completed sooner.);
• Clear recitation of which party receives what specific assets;
• A time certain for making the payments (if any);
• What will happen to later-discovered assets (or expenses); and
• Time and responsibility for filing documents to end lawsuit. (more…)