New York vs. Florida: A Forum Selection Guide for Will Contests
Special thanks to Florida/New York attorney Amy B. Beller of the West Palm Beach, Florida office of Kaye Scholer LLP, for giving me the heads up on an article she recently published entitled "New York vs. Florida: A Forum Selection Guide for Will Contests," NYSBA Trusts and Estates Law Section Newsletter, Winter 2005, Vol. 38, No. 4. Ms. Beller does a great job of outlining the distinctions between New York and Florida in the will-contest arena. From a Florida perspective, I found the following observations the most interesting:
- New York law recognizes IN TERROREM clauses as enforceable and they are commonly used. In Florida, these clauses are NOT enforceable.
- New York law provides a right to JURY TRIALS in will contests. No such right exists in Florida.
- New York law does not have an equivalent to Florida's HOMESTEAD LAWS. In New York, subject to a spouse's right of election, a decedent can devise his or her home to whomever he or she pleases.
Good article to read for Florida estate planning attorneys. Another difference I also raise with clients is the Florida requirement that a Personal Representative who is not a Florida resident must be related by blood or marriage to the decedent. One Florida case says the deceased wife's nephew could serve as the husband's P.R. when the husband died after her since the wife's death ended the relationship with between the husband and the wife's nephew.
My February 14th comment should have said "the deceased wife's nephew could not serve".