Florida Probate Litigation Lawyer Blog

The Supreme Court of Florida has adopted amendments to the Florida Probate Code effective on January 1, 2011, at 12:01 a.m. Significant changes were made to Section 732.401, Florida Statutes and will effect the way homestead property is inherited by surviving spouses. For instance, prior to the changes, if a resident of Fort Lauderdale, Florida died and was survived by a spouse and one or more children, the surviving spouse took a life estate in the homestead, and the blood relatives of the deceased would receive the homestead upon the death of the surviving spouse. A life estate means that the surviving spouse has the right to use the homestead property for the duration of his/her life, but upon the death of the spouse, the homestead belongs to deceased’s blood relatives. Additionally, the surviving spouse who has a life estate is responsible for the costs of maintaining the property.

Upon taking a life estate in the homestead property, a spouse may be confronted with new economic duties, such as property taxes, insurance, ordinary maintenance, and mortgage interest. These may be expenses that the surviving spouse cannot afford. In response to these new found financial responsibilities, some practitioners attempted to use disclaimers, a process by which the surviving spouse essentially declines to accept the homestead property, to avoid inheriting a life estate. However, the courts reached inconsistent results.

The adopted amendments to the Florida Probate Rules now provide that, instead of a life estate, a surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common. A “tenant” is the legal term for co-owner of property. If the surviving spouse chose to take a tenancy in common, instead of a life estate, the spouse would possess the property with someone else, in this case, the blood relatives of the deceased. A tenancy in common essentially means that two or more people (the surviving spouse AND the blood relatives of the deceased) would co-own the homestead property.

If the surviving spouse chooses to take a tenancy in common interest, the expenses of the homestead can be shared by the co-owners. Additionally, in a tenancy in common, unlike an interest in a life estate, the surviving spouse has the option to utilize partition procedures. Partition procedures, under Chapter 64, are not available to life tenants. If the surviving spouse takes a tenancy in common interest and files an action for partition, the homestead will be sold, and one half of the net proceeds of the partition action will be payable to the surviving spouse. The balance of the partition proceeds will be payable to the decedent’s blood relatives that were alive at the time of the decedent’s death.

If you or someone you know lives in the Broward, Miami-Dade, or Palm Beach area, and believe that you have rights to estate property and require an experienced attorney to help you determine your rights and receive your proper share of the estate. Please feel free to contact the probate litigation team at Chepenik Trushin LLP for an initial consultation.

In our society, it is common for spouses, family members, or close friends to travel together for various purposes. As such, whether travelling by automobile through Miami, by plane over Fort Lauderdale, by train through Boca Raton, or even by boat along the coast of West Palm Beach, there is, unfortunately, always a risk that a tragic accident may occur that would result in the death of multiple people. The issue of simultaneous death arises when an individual with a will, trust, or life insurance policy dies in the same accident as the beneficiary of that will or trust, and when there is uncertainty as to which person died first – the testator (creator of the will) or the beneficiary (the person who is designated under the will to receive some or all of the assets of the estate, trust or life insurance policy).

For instance, imagine that a newly married couple creates separate wills that leave all of their individual assets to the other spouse upon death. In this case, the wife would be the primary beneficiary of the husband’s will, and the husband would be the primary beneficiary of the wife’s will. Also imagine that the husband’s will states that if his wife dies before he does, all of his assets would go his brother. Thus, the husband’s brother is the contingent beneficiary of the husband’s will. Similarly, the wife’s will states that, if her husband dies before she does, all of her assets would go to her mother as the contingent beneficiary. Now, the issue of simultaneous death may arise if, for example, the couple gets into a fatal accident while driving from Boca Raton to Miami Beach.

In this scenario, if the husband dies instantly, but the wife dies one week later in the hospital, then it is clear the husband died first. As a result, all of his assets would go to his wife as the beneficiary under his will, and then they would go to his wife’s mother, because she was the contingent beneficiary under his wife’s will. Therefore, all of the husband’s assets would go to his wife’s mother upon his death.

However, if both the husband and wife are killed instantly – hence, they died simultaneously – the result is different. Florida Statute 732.601 provides that, in the event of simultaneous death, the property of each spouse will be distributed as if each spouse survived the other. This means that, under Florida law, for the purpose of distributing the husband’s property under his will, the husband will be considered to have lived longer than his wife, and his assets would go to his brother as the contingent beneficiary under his will, rather than to his wife’s mother. This result is the same for a life insurance policy. Thus, if the husband had a life insurance policy naming his wife as the beneficiary and his brother as the contingent beneficiary, the proceeds of the life insurance policy would go to the husband’s brother, instead of the wife’s mother.

Now imagine further that the couple had recently purchased a house together, and owned the house as joint tenants – meaning they shared equal ownership of the house where the husband “owned” half of the value of the house, and his wife “owned” the other half. In the first scenario, where the husband dies first, his share of ownership of the house is transferred to his wife upon his death, with the result that his wife would own the entire value of the house as an asset included in her estate. Then, when the wife dies in the hospital, the house passes to her mother, as the contingent beneficiary of her estate under her will. Once again, under Florida Statute 732.601 the result is different if both husband and wife die simultaneously. In this case, the value of the house would be distributed equally to the husband’s brother and the wife’s mother, as the contingent beneficiaries of each spouse’s will.

If you or someone you know lives in the Broward, Miami-Dade, or Palm Beach area, and believe that you have rights to estate property as a contingent beneficiary under the will of someone who died simultaneously with the primary beneficiary under his or her will, it is important that you contact an experienced attorney to help you determine your rights and receive your proper share of the estate. Please feel free to contact the probate litigation team at Chepenik Trushin LLP for an initial consultation.

According to Florida Statute § 732.501, any person who is of sound mind and legal age (at least 18 years old or emancipated) can make a will. Florida is home to an eclectic and wide ranging group of people, especially in Miami, Ft. Lauderdale, and Palm Beach. However, not every one of its adults or emancipated minors is qualified to make a will that would later be enforceable. Those lacking a sound mind, otherwise known as incapacited, may have their wills challenged by effected beneficiaries.

So what exactly is a sound mind? Florida courts have held that several behaviors could disqualify a person from making a valid will. For instance, an individual suffering from alcohol or drug addiction, mental weakness, illness, or old age may not be able to create an enforceable will; yet the presence of such condition(s) alone is not enough to invalidate a will. The residing probate court will enforce the will if the testator (creator of the will) had sufficient wherewithall and memory to understand the consequences of his/her action at the time the will was executed. If the substance abuse or condition impaired one’s mental capacity to comprehend the consequences of a will, then the court may not enforce it.

Courts will determine the mental capacity of the testator on a case by case basis to see whether there was indeed a lack of capacity. The mental state of the testator is determined at the time the will is created and executed, not the time subsequent. Thus, if Aunt Lucile created a will and then developed a drug problem, a court would likely enforce the will after a finding that she was not mentally incapable at the time she made the will.

Nevertheless, it could be difficult to determine whether one had a sound mind when creating a will. The burden of proof is on the petitioner seeking to revoke the will and the petitioner must establish mental incompetency at the time of the execution of the will by a preponderance of evidence. This usually involves expert testimony, a detailed analysis of medical records and an understanding of medical conditions which may impact the capacity of individuals to comprehend their actions.

Thus, probate litigation of wills is intricate and requires detailed evidence to overcome the presumption that the testator had the mental capacity to make a will. If you live in the West Palm, Broward or Miami-Dade area and believe a will was executed by an individual who lacked capacity or you are the beneficiary of a will under attack based on an argument of lack of capacity, 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.