Estate Administration

Family law implications under the 2018 Tax Bill

March 8, 2018 | by Chepenik Trushin LLP

HOW THE NEW TAX BILL MAY AFFECT DIVORCES

In one of our previous posts we informed about the new Tax Cuts and Jobs Act (“TCJA”) and the major changes it brings, including the various adjustments in tax deductions. This article focuses on deductions applicable to alimony, as the new system may significantly affect and expedite divorce settlements in the months to come.

Alimony is a form of spousal support awarded by agreement or by court decision to the lower-income spouse after divorce, typically referred to as the “dependent” spouse. The courts have wide discretion in establishing the amount of alimony and the time period during which the higher-income spouse is obligated to pay. The purpose of alimony is to help the dependent spouse overcome the divorce and to at least partially maintain the standard of living the spouses shared during their marriage. To ease the burden of splitting one household into two, the alimonies were tax deductible – at least until now.

A Will seems simple, but when executed, it can be a rocky road

January 10, 2018 | by Chepenik Trushin LLP

How to comply with formal requirements of Will execution

Florida law places great emphasis on compliance with its statutes regarding execution of wills. This is to assure the authenticity of such an important document profoundly affecting many lives, and prevent fraud and imposition in its execution. The statutory provisions, which appear in Florida Statute §735.502, set out four main requirements for executing a will. Failure to comply with the formal requirements can invalidate the will and force the estate to pass through intestate succession. It is therefore important to comply with and understand these formal requirements.

Firstly, the will must be in writing. This means that the document can be handwritten, typed, or printed. Florida does not recognize oral wills (nuncupative wills) or wills without witnesses (holographic wills). Nuncupative wills are allowed in only few jurisdictions and typically require witnesses and some exigent circumstances such as a car accident or a heart attack. Contrarily, many states recognize holographic wills and have different requirements as to their validity.

Ademption, knowing what is not part of your estate

December 26, 2017 | by Chepenik Trushin LLP

When devises are actually not part of the estate

Many unexpected things can happen in the period between the execution of a will and the actual death. For example, a decedent may devise the family house in Key West to her granddaughter. Several years after executing the will, the decedent gets into financial troubles and sells the Key West house. With other matters on her mind, the decedent never gets to adjust the will and passes away. Does the granddaughter still have a right to the house? Does she get money instead? Does she get any value at all?

The legal term describing a situation when a particular asset devised in the will is not part of the estate is ademption by extinction. The Florida statutes cover ademption in Section 732.606 for specific devises, and Section 732.605 for securities. Ademption is not uncommon; the decedent may have owned the asset and later sold it, or could have never owned it all. The situation would be different if the grandmother gave the granddaughter the Key West house as a gift before passing away. In that case, the granddaughter’s devise would have been satisfied during the grandmother’s lifetime. Accordingly, this legal concept is called ademption by satisfaction and is not discussed in this blog post.

Legal Capacity

December 11, 2017 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can be overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Will Florida raise the Homestead Exemption in 2018, a reader’s guide before you vote.

November 14, 2017 | by Chepenik Trushin LLP

Expanding Florida’s Homestead Exemption

Florida voters will have an important decision to make for the 2018 election—whether to raise the Florida homestead exemption. At first glance, the legislation offers a substantial property tax break for homeowners; however, if approved, the homestead exemption bill may cost counties and cities enormous revenue.

The Florida legislature created the homestead exemption in 1934 to aid residents affected by the Depression. The homestead exemption—then $5,000.00—allowed residents to keep their homes despite inability to pay property taxes. http://www.tampabay.com/news/politics/legislature/florida-homestead-exemption-increase-closer-to-ballot/2322311. In 1980, under Democratic Governor Bob Graham, Florida voters raised the exemption to $25,000.00, and again in 2008 to $50,000.00 under Republican Governor Charlie Crist. http://www.tampabay.com/news/politics/legislature/florida-homestead-exemption-increase-closer-to-ballot/2322311. Now, the November 2018 ballot will give Florida voters the choice to raise the exemption even higher.

Incapacity and marriage, the role of guardianship court

October 9, 2017 | by Chepenik Trushin LLP

Do incapacitated wards need prior court approval to marry? Subsequent ratification is enough

Already in 1888, the United States Supreme Court first recognized the right to marry as one of the fundamental rights of all individuals. Describing marriage as “the most important relationship in life,” the Court went on upholding that marriage is “the foundation of the family and society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190 (1888).

Regretfully, when it comes to marriage of incapacitated persons, they are sometimes the victims of emotional abuse, neglect, and financial exploitation. For this reason, a guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that he or she is incapacitated with respect to that right. Fla. Stat. 744.3215(2)(a); 744.331(6). However, even when a guardianship court does not remove the right to marry, an incapacitated person’s right to marry becomes “subject to court approval” when his or her right to contract has been removed. Fla. Stat. 744.3215(2)(a). This legal framework aims at protecting the ward by allowing a court to assess the risks of abuse and exploitation, while upholding the ward’s fundamental right to marry, to the greatest extent possible.

If you cannot make your own healthcare decisions and have no estate plan, see the list below, as Florida will direct you

September 22, 2017 | by Chepenik Trushin LLP

Priority of Medical Decision-Makers when Incapacitated

Throughout life, many unexpected things can happen. Have you ever wondered who will get to make difficult medical decisions for you if you are incapacitated or otherwise unable to? The Florida Legislature has, in § 765.401 Fla. Stat. (1992), made a list in order of priority of such proxies.

The first person on the list is a court-appointed guardian if one has previously been appointed and has been authorized to consent to medical treatment for the patient. Likewise, a guardian advocate previously appointed by the court will be first in line to make decisions for one who has a developmental disability. It is important to note that guardian appointments are not required before a medical decision can be made.

Recent Florida Supreme Court case law update – Hess v. Patrick

September 5, 2017 | by Chepenik Trushin LLP

Great news for Creditors! Up to 20 years to enforce a domesticated foreign judgment

Over 30 years ago, Florida enacted the Florida Enforcement of Foreign Judgments Act (FEFJA) providing a simplified procedure for domesticating foreign judgments. In other words, FEFJA allows a judgment from any other US state or the US federal government to be recognized and enforced as if it were a Florida judgment. Until recently, Florida creditors remained uncertain as to one crucial aspect of this important mechanism – what is the “expiration date” of a domesticated foreign judgment?

To understand the implications of this issue, we must look to the applicable statute of limitations. Under Florida law, the expiration date for a judgment or decree issued by a Florida court is 20 years. Fla. Stat. 95.11(1). Contrarily, a judgment or decree of any court of the United States, any other state or territory in the United States, or a foreign country, expires after only five years. Fla. Stat. 95.11(2). Therefore, the question as to which of these time limitations apply to a domesticated foreign judgment clearly bears far-reaching consequences.

May 2017 District Court of Appeals decision impacts Alimony creditors – a blend of family law and estate planning law

August 21, 2017 | by Chepenik Trushin LLP

4^th DCA Recognizes Homestead Exception for Alimony Creditors

The Florida Constitution provides powerful homestead protection against creditors. Generally, only three types of super-creditors can breach this protection – (1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage originating from the purchase of the property; and (3) creditors with liens originating from work or repair performed on the property.

However, a recent decision by the District Court of Appeal for the 4^th District confirmed a “long recognized” fourth category of super-creditors – alimony creditors. The facts of this case are as follows: Robert Spector (“Husband”) and Renee Spector (“Former Wife”) divorced in 1996, and agreed in a post-nuptial agreement that Husband would (1) pay Former Wife $5,000 per month in alimony until his or her death, or until she remarried; (2) transfer to Former Wife the title and interest in their marital home; and (3) maintain a $750,000.00 life insurance policy for Former Wife’s benefit. Subsequently, Husband was held in civil contempt for “willful and deliberate failure to comply with the alimony provisions” of the post-nuptial agreement and was also denied a bankruptcy petition as alimony arrearages were not subject to bankruptcy discharge.

Prince, George Michael and Carrie Fisher; Estate Planning 101, what are we learning?

August 14, 2017 | by Chepenik Trushin LLP

MORE MONEY, MORE PROBLEMS? 6 DO’S AND DONT’S OF ESTATE PLANNING AND INTELLECTUAL PROPERTY

At the end of last year it seemed as if every day there was a new report of a celebrity dying unexpectedly. As fans around the world mourned the death of some of Hollywood’s most iconic figures, reports of their estate planning, or lack thereof, also filled the headlines.

Prince: Intestacy and streaming music rights collide