Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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Category Archives: Marital Agreements and Spousal Rights

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Florida must recognize gay widower’s Delaware marriage for purposes of appointing the non-resident personal representative of his ancillary estate, Palm Beach probate judge rules

Posted in Marital Agreements and Spousal Rights, Removal of Personal Representatives and Surcharge
Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir, Palm Beach, August 5, 2014) Florida law says you can’t appoint a non-resident to serve as personal representative of your estate unless that person’s your “spouse” or otherwise related to you. (See F.S. 733.304). This rule’s always struck me as an arbitrary trap for the unwary … Continue Reading

2d DCA: If the judge adjudicating your divorce enters final judgment, but retains jurisdiction to decide property issues, does that jurisdictional authority evaporate if one of the parties to the original divorce proceeding dies?

Posted in Creditors' Claims, Marital Agreements and Spousal Rights, Practice & Procedure
Passamondi v. Passamondi, — So.3d —-, 2014 WL 228648 (Fla. 2d DCA January 22, 2014) The traditional rule is that an action for divorce is purely personal in nature and that the death of one of the parties causes the action to terminate or “abate.” The rationale for this rule is simple: when one of the … Continue Reading

2d DCA: Alimony claim vs. Florida spendthrift/discretionary trust: who wins?

Posted in Marital Agreements and Spousal Rights, Will and Trust Contests
Berlinger v. Casselberry, — So.3d —-, 2013 WL 6212023 (Fla. 2d DCA November 27, 2013) If you’re a family-law or trusts and estates lawyer, you can’t ignore this case. In the absence of legislative changes or a conflicting ruling out of another Florida DCA, Berlinger is now the law of the land. Which means if you’re … Continue Reading

2d DCA: If I withdraw funds from a joint checking account to buy myself a $58K Rolex and $19K diamond ring, who owns this stuff when I die?

Posted in Marital Agreements and Spousal Rights
Connell v. Connell, — So.3d —-, 2012 WL 3101842 (Fla. 2d DCA August 01, 2012) Joint bank accounts and other forms of joint property get litigated all the time in contested probate proceedings, which means they end up as recurring topics on this blog [see here, here, here, here]. This time around the issue was who owned a $58,350 men’s … Continue Reading

Effective July 1, 2012, Florida now has post-divorce automatic nullification statute for beneficiary-designated non-probate assets such as life insurance, annuities, pay-on-death accounts, and retirement planning accounts

Posted in Marital Agreements and Spousal Rights, Probate & Guardianship Statutes
In 1951 Florida enacted a statute automatically cutting divorced spouses out of each other’s wills (currently at F.S. 732.507(2)). In 1989 Florida enacted a similar statute for revocable trusts (currently at F.S. 736.1105). These statutes were all we needed when most people relied on a will or revocable trust to provide for their heirs. Times … Continue Reading

Fla.S.Ct: Decedent’s marital settlement agreement vs. beneficiary designation form: Who wins?

Posted in Marital Agreements and Spousal Rights
Crawford v. Barker, — So.3d —-, 2011 WL 2224808 (Fla. Jun 09, 2011) In 1951 Florida enacted a statute automatically cutting divorced spouses out of each other’s wills (currently at F.S. 732.507(2)). In 1989 Florida enacted a similar statute for revocable trusts (currently at F.S. 736.1105). The same inequities that lead to post-divorce automatic revocation statutes … Continue Reading

3d DCA: Can husband and wife waive homestead rights by merely signing a joint deed?

Posted in Marital Agreements and Spousal Rights
Habeeb v. Linder, — So.3d —-, 2011 WL 613392 (Fla. 3d DCA Feb 09, 2011) UPDATE: This case was settled, prompting the 3d DCA to enter this order withdrawing its opinion. Trust and estates lawyer extraordinaire, Jeff Baskies, once again provides excellent commentary on this turn of events and what it all means for Florida homestead law. Under Florida law a … Continue Reading

Divorce + Equitable Distribution + Irrevocable Trusts = ??

Posted in Marital Agreements and Spousal Rights
As I previously wrote here, irrevocable dynasty trusts are all the rage in estate planning circles, and for good reason. They’re good tax planning and offer excellent asset protection benefits. Although a rouge plaintiff’s lawyer is the boogeyman most people think about when they hear asset protection, the real threat to family wealth is divorce. The … Continue Reading

In dramatic break with the past new F.S. 732.805 gives families standing to challenge deathbed marriages

Posted in Marital Agreements and Spousal Rights
Deathbed marriages can be the ultimate weapon for those looking to prey on the elderly. In Florida you can marry someone minutes before their death and automatically vest into the right to live in the decedent’s homestead residence rent-free for the rest of your life, a 50%-100% share of the decedent’s estate under Florida’s intestacy … Continue Reading

1st DCA: Just because a couple “acts married” doesn’t mean they’re legally married

Posted in Marital Agreements and Spousal Rights
Hall v. Maal, — So.3d —-, 2010 WL 1212794 (Fla. 1st DCA March 30, 2010) Just because someone says they were married to the decedent, doesn’t make it so. In contested probate proceedings you simply can’t take this fact for granted; the economic implications are too big. A surviving spouse has [1] the right to … Continue Reading

5th DCA: Will voluntary financial disclosure – if inaccurate or fraudulent – invalidate a prenuptial agreement dealing solely with inheritance rights?

Posted in Marital Agreements and Spousal Rights
Foster v. Estate of Gomes, — So.3d —-, 2010 WL 322170 (Fla. 5th DCA Jan. 29, 2010) Prenuptial agreements limiting themselves solely to spousal inheritance rights are governed by F.S. § 732.702. All other prenuptial agreements are governed by the more burdensome requirements of Florida’s Premarital Agreement Act, found at F.S. § 61.079. Generally speaking, inheritance-rights prenup’s are … Continue Reading

1st DCA: How specific does a premarital agreement have to be to defeat a surviving spouse’s claims?

Posted in Marital Agreements and Spousal Rights
Taylor v. Taylor, — So.2d —-, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009) [Attorney Interview] I wrote here in 2006 about an "ambiguous" premarital agreement that the 3d DCA held was a valid waiver of a widow’s marital rights under F.S. § 732.702. Here’s the clause at the center of the 3d DCA … Continue Reading

Good Facts Rescue “Ambiguous” (Maybe Non-Existent?) Elective Share Waiver in Prenuptial Agreement

Posted in Marital Agreements and Spousal Rights
Weisfeld-Ladd v. Estate of Ladd, 2006 WL 231481 (Fla. 3d DCA Feb 01, 2006) Clearly, the couple at the center of this dispute thought that when they signed their prenuptial agreement they were waiving any spousal rights they had to each other’s separate property – including rights of a surviving spouse to an elective share … Continue Reading