Florida Probate Litigation Lawyer Blog

Pauline, a lifelong resident of Broward County, Florida, has finally decided to consult with an attorney about drafting a will. Included among the property she wishes to devise is her house, stocks, bonds, her car, savings accounts, and personal property contained inside her home.

An avid collector of antique vases for almost 30 years, Pauline has accumulated a large assortment that brings her much joy, although most of the pieces themselves are not valuable. Upon her death, she wishes to distribute specific vases among her many grandchildren.

As a general rule, it is difficult to successfully update or modify gifts in a will without executing a new will or create an amendment to a will, known as a codicil. Although it makes sense to update a will when one wishes to make significant modifications in regard to high-valued property or the people receiving under a will, it is often a far too complicated process when only tangible personal property, such as the antique vase collection, is concerned. Pauline is constantly adding new items to her collection, and as the proud mother of several children, welcomes a new grandchild into her life almost every year.

Florida Statute 732.515 provides a convenient exception to the rigid general rule described above. It allows a testator (the person creating a will) to maintain a list or statement that is referenced in a will instructing how to distribute tangible personal property. Thus, this provision of the Probate Code gives Pauline the ability to keep a running list of her personal property, such as her vase collection, and update it as often as she pleases without going through the formalities of updating her will.

Note, however, that only tangible personal property may be referenced in a separate writing under Florida Statute 732.515. Property such as Pauline’s house, stocks, bonds, car, savings accounts, etc. cannot be devised in this manner. Additionally, such tangible personal property may not have been used in trade or business, or be property that is otherwise disposed by the will itself.

To be valid, this separate writing must be signed by the testator and adequately describe the items of personal property and the people they are to go to with reasonable certainty. It is important to note that if more than one separate writing disposing of personal property in this manner exists, the most recent writing will control.

Most property of value, however, does not qualify for the limited exception granted by Florida Statute 732.515. Often times, making additions or modifications in a will requires the help of trained professionals to ensure they will be executed as intended. If you or someone you know lives in the West Palm Beach, Fort Lauderdale or Miami-Dade area, the probate team at Chepenik & Trushin will help create a separate writing for the disposition of tangible personal property, or otherwise help you establish or modify a will. Please feel free to contact us for an initial consultation.

This article contrasts the laws regarding disinheritance of a child in a Florida will with our earlier article regarding disinheritance of a spouse. Florida law has some of the strongest legal protections for minor children who are left out of a will.

While a Florida resident is entitled to disinherit their adult children, they cannot completely disinherit their minor children. Florida’s Constitution contains homestead laws which prohibit the head of a family from leaving his or her residence to someone other than their surviving spouse or minor child if either is alive. Under the homestead laws, a surviving spouse is given use of the property for their remaining life and then it passes to the minor children. Therefore, if decedent attempts to devise their Boca Raton home at death to a friend, the homestead laws will prevent this devise. The house will go first to decedent’s surviving spouse, if any, for life and then to their children who were minors at the time of the death. The homestead restrictions provide protection for the decedent’s family by ensuring that they cannot disinherit their dependents.

Additionally, Florida law gives relief to minor children who were born after the execution of a will. Under Florida law, if a child is born to or adopted by a Florida resident after the execution of their will and the will does not provide for a child, that child is deemed a pretermitted child and as a result is entitled to a share of the decedent’s estate. That share is roughly equal to their intestate share which is what the child would have received had the decedent died without a will.

Finally, if a decedent did intend to disinherit either their minor or adult children it should be clearly stated in their will. If it is not clearly stated, than this disinheritance may be grounds for a probate litigation proceeding. The will can be attacked on the grounds that the testator was not of sound mind or was unduly influenced when he or she drafted the will and left out the child(ren).

If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and believe they were improperly disinherited from a will or not given their rightful share, the probate litigation team at Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Under Florida Statute 732.201 the surviving spouse of an individual who dies and is also domiciled in Florida, has a right to a share of the elective estate of the decedent. This right gives the surviving spouse up to 30% of the decedent’s elective estate, even if they were expressly disinherited in a will or trust. Thus, even if a will specifically disinherits a spouse, Florida Law will override the terms of the will and apply the spouse’s right to an elective share. For this right to apply, the decedent must have been married and must have been domiciled somewhere within Florida, whether it was Palm Beach, Broward or Dade county, at the time of death.

A surviving spouse does not have to be completely disinherited to opt for the elective share. The elective share can be elected whenever a surviving spouse stands to receive less than 30% of decedent’s elective estate. The only exceptions to this rule come from valid pre nuptial agreements, post nuptial agreements and effective waivers by spouses of their elective share rights.

The 30% is calculated from the “elective estate” of the decedent’s assets. The elective estate tends to include a larger scope of assets than those included in decedent’s probate estate. Florida Statute 732.2035 lists those probate and non-probate assets which are included in the elective estate. Those assets include, but are not limited to, property owned by the decedent, revocable trust assets, funds from payable on death accounts, and any property given away within one year of decedent’s death.

The elective share calculation can be complicated but an experienced probate litigation lawyer can help you evaluate your rights under Florida’s elective share laws. Additionally, acting fast is crucial because a surviving spouse has only 6 months from the time they receive notice of the estate’s administration to make the Florida elective share election. If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and was improperly disinherited from a will or not given their rightful share, the probate litigation team at Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.