Florida Probate Litigation Lawyer Blog

In United States v. Windsor, the Supreme Court took a historic step towards providing equality to all, regardless of sexual orientation. While a significant victory for same-sex couples across the nation, it must also be understood that this decision is somewhat limited in scope. As the Miami Herald noted, this Supreme Court “ruling leaves Florida same-sex couples in limbo,” due to the fact that same-sex marriages are still not permitted under the Florida Constitution. The Court’s decision affirmed the Second Circuit Court of Appeals’ ruling that Section Three of The Defense of Marriage Act (“DOMA”), which stated “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife,” was unconstitutional. While a positive step for same-sex couple seeking equal treatment, this decision still leaves same-sex couples at the mercy of their state’s legislature. In Florida, for example, Governor “Rick Scott made clear [] that he intends to enforce the same-sex marriage ban that voters approved in 2008.” . Additionally, the Supreme Court did not rule all of DOMA unconstitutional, meaning that, pursuant to Section Two of DOMA, states still do not have to respect same-sex marriages consummated in other states.
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As ABC’s hit sitcom “Modern Family” becomes a reality for many American families, the estate planning industry must evolve as the number of same-sex marriages increases. A Gallup poll released on July 29, 2013, revealed that the majority of Americans, 52%, would vote in favor of legalizing gay marriage in all 50 states. A more recent poll by Civil Beat shows that 44% of voters in the state of Hawaii would vote to legalize gay marriage in the state, a rapid increase from the 37% favorability in an April 2012 poll on the same issue. Other recent reports reveal that New Jersey is poised to become the 14th state in the U.S. to recognize gay marriage, and Hawaii to become the 15th. Although support for gay marriage is growing, the current inconsistency in states’ recognition of gay marriage posits important estate considerations for legally married, same-sex couples.
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August 5, 2013, will mark the 51st anniversary of Marilyn Monroe’s tragic death due to a drug overdose in 1962. Marilyn was an extremely successful American actress, model, and singer, who became a major style icon for young women during the 1950s and early 1960s. After her death at the age of 36, Marilyn’s Will was filed in the New York Surrogate Court on August 17, 1962, with the largest slice of her assets bequeathed to one Mr. Lee Strasberg. Strasberg, Marilyn’s mentor and acting tutor, received the remainder of Marilyn’s Estate, as well as her personal effects and clothing, a financial and also sentimental gain. Accordingly, the Fourth provision of Marilyn’s Will reads in relevant part:

(d) I give and bequeath all of my personal effects and clothing to LEE STRASBERG, or if he should predecease me, then to my Executor hereinafter named, it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted.
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It is still as true today as it was in 1789 when Benjamin Franklin coined the phrase “nothing can be said to be certain, except death and taxes.” Despite his best efforts to avoid falling victim to this inviolable inevitability, Japanese supercentenarian Jiroemon Kimura, who was recognized by Guinness World Record as the oldest living man in the world, fell victim to the former of Franklin’s two certainties when he tragically died on Wednesday, June 12, 2013, at the age of 116. Before you shed any tears for Mr. Kimura, however, consider the fact that Mr. Kimura achieved something in life that should make him the envy of every inhabitant of the world he left behind. I am not talking about Mr. Kimura living until 116, despite the fact this was quite the accomplishment. No, what I am alluding to is worth far more than simply living to see the invention of both the automobile and the iPhone; Mr. Kimura was retired for 51 YEARS!
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This month the Supreme Court ruled that a widow was not entitled to the proceeds of her husband’s life insurance policy worth $125,558.03. The Court held that her husband’s ex-wife was entitled to the proceeds as the result of an all too common mistake-he forgot to change his life insurance beneficiary after he divorced his previous wife. This case originated in Virginia, where a statute provides addresses this very situation, i.e., where an individual with a life insurance policy divorces the beneficiary of that policy and, subsequently, forgets to amend the beneficiary. Specifically, “Section 20-111.1(D) of the Virginia Code renders a former spouse liable for insurance proceeds to whoever would have received them under applicable law, usually a widow or widower, but for the beneficiary designation.” Hillman v. Maretta, 2013 WL 2371463 (June 3, 2013) (citing Va. Code Ann. §20-111.1(D)(Lexis Supp. 2012)). So what was the problem?
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