Articles Posted in Same Sex couples

Is it a Gift or a Loan? Your intention matters for your Estate Planning

Have you ever given your child money to help them with school or a car or rent? How about loaning money to a friend? Is the intention to give a gift or a loan? How these transactions affect your estate planning may not be your first thought, but a good estate planner will take these transactions into account.

A transaction is a gift under section 2512(b) of the Code whenever there is a transfer for less than adequate and full consideration. If you never expect the other person to pay you back, then the transfer was a gift. At this stage it is important to remember that a gift should be properly reported on a gift tax return. Now what if you have made a large gift to one of your children during your lifetime, but you would like to treat your children equally upon your death? You may wish to acknowledge in your will or trust the gift you made to your child during your lifetime as an advancement of that child’s share. This would reduce your child’s share by that amount and give that same amount to your other children.

Seeking Paternity in Probate: Are You Out of Time?

When an estate enters probate and is being distributed, the distribution is usually between family members. Family members can include spouse, children from the marriage, parent, adopted child, aunt, cousin, etc. If there are issues or questions about the status of these individuals, they are usually litigated after the estate holder passes. But what if you are a child born out-of-wedlock? What status do you have and what rights do you have to the estate?

Under Fla. Stat. § 732.103, any children from the marriage are automatically deemed heirs of the estate, and entitled to a share of the intestate estate. But out-of-wedlock children have to establish paternity if they want to share in the distribution of the estate. But do these individuals have the opportunity to litigate the paternity after the father has passed? The opportunity is there, but it is subject to a statute of limitations under Fla. Stat. § 95.11(3)(b). The statute imposes a four year limitation for paternity actions generally, starting from the date the individual turns eighteen.

4th 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 4th 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.

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

Florida same-sex surviving spouses may be added on a death certificate without a court order

In 2015, the United States Supreme Court issued its pioneering decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding state laws prohibiting or refusing to recognize same-sex marriages unconstitutional.  After Obergefell, Florida started recognizing same-sex marriages and began to list a same-sex surviving spouse on the deceased spouse’s death certificate, where the marriage was lawfully entered into in another jurisdiction.  However, the surviving spouse was out of luck if the marriage was entered into before Obergefell, unless the surviving spouse obtained an individual court order approving the correction.

This obtrusive situation has changed for now.  In a recent order from March 23, 2017, a federal judge granted a summary judgment to a certified class, ordering that Florida must amend any death certificate without a court order when the decedent was lawfully married to a person of the same-sex at the time of the death.  The same judge issued an order striking down Florida’s marriage ban in August 2014.  The plaintiffs in this case were two gay surviving spouses, married before Obergefell, who filed the case not only on their behalf, but on behalf of other similarly situated persons as well.  The plaintiffs sought to have their spouses’ death certificates show they had been married, but the state argued that Florida law prohibited amending the death certificates without a court order.

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