Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

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 a whole lot simpler to draft, less costly for clients, and easier to enforce. Why? One big reason is that these agreements (if executed prior to the marriage) don't require prospective spouses to go through all of the financial disclosure normally needed to make prenup's governed by Florida's Premarital Agreement Act stick. This distinction is often lost on attorneys used to litigating prenup's in divorce proceedings, and was at the heart of the court's ruling in the linked-to opinion.

Prior to their marriage, Lora Foster and Edward Gomes entered into an antenuptial agreement in which Ms. Foster waived all right to Mr. Gomes's property, including her right to an elective share. Although not required by Florida law, Mr. Gomes disclosed the bulk of his assets when they entered the agreement, omitting one asset valued at approximately $10,000.

*     *     *

Florida law does not require prior disclosure of assets for an antenuptial agreement. § 732.702(2). Recognizing this, Appellant argues that a disclosure, once made, albeit voluntarily, if inaccurate or fraudulent, invalidates the antenuptial agreement, citing Stregack v. Moldofsky, 474 So.2d 206 (Fla.1985) (Ehrlich, J., dissenting). Unfortunately for Appellant, that dissenting opinion has not garnered a consensus either within the Florida Legislature or Florida courts. We prefer, instead, to rely upon the binding majority opinion which stated, “[n]ondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of antenuptial agreements.” Stregack, 474 So.2d at 207. In so holding, the law continues to accommodate the desires of older Florida residents to marry again without risking an unwanted disposition of a lifetime's assets due to a partial disclosure. See id.

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Boulis v. Blackburn, --- So.3d ----, 2009 WL 2382358 (Fla. 4th DCA Aug 05, 2009)

The decedent at the heart of this probate battle, Konstantinos "Gus" Boulis, was a Greek immigrant and self-made millionaire who had started as a dishwasher in Canada and ended up in Florida, where he built an empire of restaurants, hotels and cruise ships used for offshore casino gambling. His 2001 gangland-style murder was allegedly linked to the $147.5 million sale of his company, SunCruz Casinos, to a partnership including disgraced Republican über lobbyist Jack Abramoff.

Apparently Boulis wasn't very fond of his wife: he completely cut her out of his estate. Lucky for her Boulis died a Florida resident, so she was able to claim a 30% share of his estate under F.S. § 732.201. That's the good news. The bad news is that she may have to fork over close to half of her share in estate taxes.

The Elephant in the Room: Estate Tax Allocation:

In large estates the elephant in the room is always: "who's going to pay the estate tax?" Considering that the top marginal estate tax rate is 45%, whose share of the estate gets used to pay this tax bill is a huge big deal. For example, if Boulis's widow was awarded a $10 million elective share, how the estate-tax allocation question is answered could mean the difference between her walking away with $10 million or $6.5 million!

Usually zero estate taxes are allocated to a widow's elective share because of the unlimited estate-tax marital deduction. However, Boulis's widow wasn't a U.S. citizen, so the normal rules don't apply. But even for non-citizens, it's pretty easy to avoid paying any estate tax by creating a qualified domestic trust or "QDOT" to hold the widow's share of the estate. For reasons not explained by the 4th DCA, this hasn't happened in this case.

Having failed to dodge the estate-tax bullet by relying on the federal tax code provisions governing QDOTs, Boulis's widow fell back on two state-level statutory-construction arguments involving F.S. 733.817, Florida's estate-tax allocation statute.

[1]  Is an elective share ever liable for estate taxes?

Because elective-share assets going to a surviving spouse almost never trigger any estate tax, F.S. 733.817 doesn't have a specific clause addressing those rare instances where a tax is triggered. Boulis's widow argued this omission means taxes are NEVER allocated to elective share assets. Wrong answer says the 4th DCA, here's why:

Appellant argues that certain probate code sections relieve her elective share of any liability for estate taxes. Section 733.817, Florida Statutes (2000), governs the apportionment of estate taxes. Subsections (5)(a), (5)(b), and (5)(c) apply to the apportionment of taxes on property passing under the decedent's will, property passing under the terms of any trust created in the decedent's will and homestead property, respectively.

*     *     *

“The purpose of section 733.817 is to ensure that all estate and inheritance taxes are shared on a ratable basis by the beneficiaries receiving the property subject to those taxes.” Tarbox v. Palmer, 564 So.2d 1106, 1108 (Fla. 4th DCA 1990). As appellant is not entitled to the marital deduction on her elective share, then that elective share is subject to tax. The net tax on an elective share is not apportioned under paragraphs (5)(a), (5)(b), or (5)(c), and it is not otherwise excluded. Therefore, the net tax attributable to the elective share is apportionable under section 733.817(5)(f).

[2]  But what if the decedent waived the normal tax allocations rules?

Boulis's widow then argued that even if her share of the estate was taxable, her husband's will trumped application of the Florida tax allocation statute because it directed that the payment of taxes attributable to property NOT passing under his will (such as her elective share) must be paid from property passing under his will (read: tax everyone else but the widow). This allocation argument has a long and storied past here in Florida. Unfortunately for Boulis's widow, by now it's pretty well settled that the language in the will has to be extremely specific for this argument to work. In this case it wasn't, so she lost this argument as well.

In his will, the decedent “direct[s][his] Personal Representative to pay out of the property which would otherwise become a part of the Residuary Estate, all estate, inheritance, transfer and succession taxes, including interest and penalties thereon, which may be lawfully assessed by reason of my death.” Appellant argues that pursuant to section 733.817(5)(h)1., Florida Statutes (2000), this provision of the will directs appellees to pay the taxes on the elective share out of the residuary estate. The trial court held that section 733.817(5)(h)4., Florida Statutes, is the applicable provision and, under that section, the decedent has not effectively directed the payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument.

Section 733.817(5)(h), Florida Statutes, provides in pertinent part:

(h)1. To be effective as a direction for payment of tax in a manner different from that provided in this section, the governing instrument must direct that the tax be paid from assets that pass pursuant to that governing instrument, except as provided in this section.

*     *     *

4. For a direction in a governing instrument to be effective to direct payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument, the governing instrument must expressly refer to this section, or expressly indicate that the property passing under the governing instrument is to bear the burden of taxation for property not passing under the governing instrument. A direction in the governing instrument to the effect that all taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise shall be effective to direct the payment from property passing under the governing instrument of taxes attributable to property not passing under the governing instrument.

In In re Estate of McClaran, 811 So.2d 799 (Fla. 2d DCA 2002), the Second District addressed the issue of whether the direction in the decedent's will was effective under section 733.817(5)(h) to override the statutory method of apportionment of estate taxes. McClaran's will provided in pertinent part:

My personal representative shall pay from the residue of my estate ... estate and inheritance taxes assessed by reason of my death, except that the amount, if any, by which the estate and inheritance taxes shall be increased as a result of the inclusion of property in which I may have a qualifying income interest for life or over which I may have a power of appointment shall be paid by the person holding or receiving that property.

Id. at 800 (emphasis in original).

*     *     *

Just as in McClaran, the direction in the decedent's will does not include an express indication that the property passing under the will is to bear the burden of taxation for property not passing under the will.

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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 case:

"It is [husband's] intent that, in the event of his death, all of his separate property be given to his children, STEVEN M. LADD and BETHANY S. LADD, or as otherwise provided for in his Last Will and Testament."

In that case the court relied on evidence outside of the four corners of the agreement as the basis for enforcement. In other words, the 3d DCA held this clause was NOT precise enough on its own to effectuate a waiver of spousal rights under F.S. § 732.702, so the probate court was right to accept parol evidence when enforcing it.

Fast forward to the present and the linked-to opinion out of the 1st DCA. Here's the waiver clause at the center of the new case:

"All property which belongs to each of the above parties shall be, and shall forever remain, their personal estate, including all interest, rents, and profits which may accrue from said property, and said property shall remain forever free of claim by the other."

According to the 1st DCA this clause was just fine, thank you very much. No ambiguity here. In fact the 1st DCA goes out of its way to let the probate court know that it should NOT have taken parol evidence to "decipher" its meaning. Here's how the 1st DCA explains its ruling upholding this clause on the grounds that under F.S. § 732.702 a contract's broadly-stated intention to waive spousal rights in whatever form they may take is sufficient:

Application of section 732.702(1) leads us to conclude that the trial court erred in determining that the prenuptial agreement was ambiguous as to Appellee's rights in the decedent's estate. Section 732.702(1) does not require that the parties specify an intent to relinquish rights given to surviving spouses in order to effectively relinquish those rights. Instead, the statute provides that a general relinquishment of “all rights” or equivalent language is sufficient to accomplish this purpose. Here, Appellee agreed, under paragraph one, that after marriage, the decedent's property would “forever remain [his] personal estate” and that such property would be “forever free of any claim by [Appellee].” Because this language is equivalent to a statement that Appellee waived “all rights” in the decedent's property or estate, section 732.702(1) compels a conclusion that the prenuptial agreement was a valid waiver of those rights.

Lesson learned?

I think it's impossible to reconcile the different approaches taken first by the 3d DCA in 2006 and then by the 1st DCA above when applying F.S. § 732.702 to what all of us can agree are less than artfully drafted prenuptial agreements. So what's a probate litigator to do? Cover all your bases. How? Argue in the alternative: build a record that wins your client's case based both on parol evidence (à la the 3d DCA's approach in 2006) and on the text of the agreement itself (à la the 1st DCA's approach in the linked-to case above). Either way, you're ready, willing and able to win your case.

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In re Estate of Magee, --- So.2d ----, 2007 WL 2781131 (Fla. 2d DCA Sep 26, 2007)

When all else fails, one way to win a probate dispute is to challenge the portion of the probate code at issue on constitutional grounds.  A successful example of this approach was the Florida Supreme Court's 1990 decision in Shriners Hospital for Crippled Children v. Zrillic, 563 So.2d 64 (Fla.1990), where the court struck down Florida's mortmain statute, then codified at section 732.803, because it violated article 1, section 2 of the Florida Constitution by impermissibly infringing on the decedent's testamentary rights.

How hard is it to set aside a statute on constitutional grounds? VERY

Courts will bend over backwards to uphold a probate statute being challenged on constitutional grounds.  In Shriners Florida's Supreme Court ruled that the “reasonable relationship” or “rational basis” standard applies to review a statute that potentially infringes on (but does not destroy entirely) property or testamentary rights.  This is the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. The higher levels are typically referred to as intermediate scrutiny and strict scrutiny.

Is Florida's spousal elective share statute constitutional? YES

In the linked-to case Florida's spousal elective share statutes [click: 732.201 to 732.2155] were challenged on constitutional grounds.  The argument was that Florida law requiring that at least 30% of every married person's estate be set aside for a surviving spouse -- regardless of whether the surviving spouse had any financial need whatsoever -- violated the decedent's constitutionally protected property rights.

Nice try, but no cigar.  The 2d DCA upheld the constitutionality of Florida's elective share statutory scheme under the rational basis test.  The following excerpt from the linked-to opinion sums up the court's reasoning and also provides good guidance for anyone considering a future constitutional challenge to any other portion of Florida's probate code.

Fortunately, the Florida Supreme Court has recently clarified that the test to be applied in evaluating statutes and regulations that infringe on property rights or testamentary rights-at least those that do not require the absolute destruction of property-is not the “least restrictive means” test urged by Judith here, but rather a “reasonable relationship” test. In Haire v. Florida Department of Agriculture & Consumer Services, 870 So.2d 774, 783 (Fla.2004), the court explained,

[W]e have held that “[a]ll ... property rights are held subject to the fair exercise of the [police] power,” Golden v. McCarty, 337 So.2d 388, 390 (Fla.1976) (emphasis supplied), and have used the reasonable relationship test ... to evaluate statutes and regulations that infringe on property rights.

Id. (footnotes omitted).

As support for this proposition, the court expressly cited Zrillic. Haire, 870 So.2d 783 n. 9. In reconciling the cases, therefore, the Florida Supreme Court has now established that the “reasonable relationship” or “rational basis” standard applies to review a statute that potentially infringes on (but does not destroy entirely) property or testamentary rights.

As further explained in Haire,

Under this standard of review ... a “state statute must be upheld ... if there is any reasonable relationship between the act and the furtherance of a valid governmental objective.” Lane v. Chiles, 698 So.2d 260, 262 (Fla.1997) (emphasis supplied). Specifically, with respect to substantive due process, a statute is valid if it “bears a rational relation to a legitimate legislative purpose in safeguarding the public health, safety, or general welfare and is not discriminatory, arbitrary, or oppressive.” Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1215 (Fla.2000).

870 So.2d at 782.

As noted above and acknowledged by Judith, this state has a “strong public policy concerning the protection of the surviving spouse of [a] marriage in existence at the time of the decedent's death.” See Via, 656 So.2d at 461. The provisions of the elective share statute thus serve a legitimate legislative purpose. The statutes are rationally related to that purpose in that they seek to provide any surviving spouse who has not waived such protections a minority share in the assets of the decedent in the event that spouse did not receive as much through testamentary dispositions. [FN3] This legislative scheme has strong historical roots in the common law, in existence before the enactment of our state constitution and undisturbed until now.

We therefore affirm the order on appeal.

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Marlowe v. Brown, 944 So.2d 1036 (Fla. 4th DCA Aug 02, 2006)

Being an effective probate litigator often requires lateral thinking -- the generation of novel solutions to problems using other than straightforward, step-by-step logic. The point of lateral thinking is that many problems require a different perspective to solve successfully.

The linked-to case is a perfect example. In this case a couple was in the midst of a very contentious divorce proceeding.  After they signed a non-final mediation agreement, but before a final judgment of divorce was entered, husband died. Shortly thereafter, wife died.  Presto! . . . we're in probate litigation land.

Why fight over a 50% divorce mediation agreement when you can get 100% in probate?

Before husband died, the parties had been contesting the meaning of their divorce mediation agreement, which contemplated a 50/50 split of the couple's assets.  Rather than continue this litigation in a linear fashion within the probate context, wife's PR came at the problem from a completely different perspective: why argue over 50/50 when wife, as a surviving spouse, gets 100% of all jointly titled assets?

In September, 2003, the wife moved the probate court to declare certain assets to be hers. Among these assets were the Greenbrier Farm, the Naked Lady Ranch, and “Hatteras Lots;” the dissolution judge's January 21 order had found that the husband and wife owned these properties as tenants by the entirety. The wife argued that these lots passed to her by operation of law when her husband died. The wife made similar arguments as to other properties based on the way the properties were titled at the time of the husband's death. For example, the wife argued that 103,114.299 troy ounces of silver passed to her under the provisions of a storage contract which declared that the account was a joint tenancy with right of survivorship.

Wife lost this argument at the trial court level . . . but won where it counts: on appeal.  The 4th DCA ruled that first, in the absence of a final judgment, there was no divorce; and second, as surviving spouse she gets 100% of the joint property.  Here's how the 4th DCA summed up its thinking:

The dissolution of marriage action terminated with the death of the husband and the . . . judge should have dismissed the case upon the wife's motion.

.     .     .     .     .

In Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934), the supreme court described the effect of an appellate reversal of a divorce decree, where one spouse dies after the issuance of the decree, but while the appeal is pending:

[O]n such reversal, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had.

Similarly, the husband's death in this case left the wife in the legal position of one whose marriage was terminated by death, and not by a final judgment.

Yes, lateral thinking wins the day again. 

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Trenchard v. Gray, --- So.2d ----, 2007 WL 837294 (Fla. 2d DCA Mar 21, 2007)

In Dempsey v. Dempsey (a 2005 opinion I wrote about here) the 2d DCA ruled on when elective share orders are subject to appeal.  Under Florida Probate Rule 5.360, determining the elective share is a two-step process:

• First, the trial court must rule on the issue of entitlement (Rule 5.360(c)).
• Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)). 

Step one is a non-final, non-appealable order.  Step two is an appealable order.


Based on the same rationale, the 2d DCA dismissed an appeal of a step-one elective share order in the linked-to opinion.  The following excerpt from Judge Silberman's concurring opinion does a good job of explaining - again - the 2d DCA's approach to elective-share-order appeals:

Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray's claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court's order finds that the decedent's interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent's interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).


The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court's order is nonfinal and nonappealable. See Dempsey, 899 So.2d 1272.

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Janien v. Janien, 2006 WL 2956304 (Fla. 4th DCA Oct 18, 2006)

Under Florida law a surviving widow or widower is entitled to at least 30% of the decedent spouse's estate.  If done properly, an "elective share trust" allows a person to satisfy his or her surviving spouse's elective share rights, while still retaining the right to say what happens to the elective-share assets when the surviving spouse dies.   This planning device  can be especially useful  where a person wants to provide for a second  wife or husband, but make sure the family assets go back to his or her children when the surviving spouse dies.

The issue in this case was whether the following clause created an elective share trust within the meaning of F.S. 732.2025(2).  The drafting attorney who prepared this instrument testified that at the time he did the drafting he'd never heard of an elective share trust.  So the question was did the decedent "accidentally" get it right?

ARTICLE SECOND: If my husband, Cedric Janien, survives me:

A. I devise and bequeath my beneficial interest in the North Chatham Realty Trust, together with all furniture, fixtures, antiques and other items of personal property in said residence, to my Trustee, with the right in my husband to exclusively live in and occupy such residence for the period of his life, and provided that he is financially able to do so, he shall be responsible for all maintenance charges and taxes assessed against the residence during his lifetime. If he does not have the financial ability to pay such expenses and taxes, them my Trustee is authorized and is directed to mortgage the premises for the purpose of paying such maintenance charges and taxes.

The trial court ruled this trust did NOT qualify as an elective share trust.  The 4th DCA agreed, providing the following valuable guidance:

First, Article Second (A) fails to satisfy the requirement of section 732.2025(2)(a), because .  .  .  Cedric is entitled neither to the “use” of the property within the meaning of the statute, nor to “income” derived from the property.

**********

Article Second (A) created something less than a life estate in the Massachusetts property.

**********

We also hold that Article Second (A) does not satisfy the requirements of section 732.2025(2)(b). That section requires that the purported elective share trust be “subject to the provisions of former s. 738.12 or the surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time.”

Lesson learned: 

The technical requirements for a valid elective share trust are such that you're probably not going to have a qualifying clause unless the drafting attorney knew what he or she was doing.  By way of contrast, the following is a form of elective share trust that actually works:

Despite any other provision of this Trust Agreement, if my wife or her designated representative elects the Elective Share in my estate, any trust created under this Trust and not qualifying for the federal marital deduction in which my wife is a beneficiary will be divided into two parts, with the least amount of that trust as is needed to satisfy the balance of the Elective Share unpaid by other sources under Section 732.2075 of the Florida Statutes being held as a separate trust (the “Elective Share Trust”) and administered so as to qualify under Section 732.2025 of the Florida Statutes (including the right for my wife to require the Trustee to make the trust property productive or to convert it within a reasonable time). Unless the original trust already provides for a qualifying invasion power or a qualifying power of appointment for my wife, the Personal Representative in its discretion may elect to create an invasion power for the Elective Share Trust for purposes of valuation under Section 732.2095 of the Florida Statutes. If an invasion power is created, the Personal Representative shall designate that such a power is to apply by filing a notice with my wife and in the probate court within 6 months after the election by my wife of the Elective Share.

Continue Reading...

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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 under F.S. § 732.201. Nonetheless when husband died, surviving spouse went ahead and filed a petition seeking an elective share of his estate. The 3d DCA summarized her testimony regarding the couple's clear intent as follows:

"Most importantly, the wife testified as to her understanding of the Prenuptial Agreement. It was her understanding that if she would have passed away, her son would have inherited all of her separate property, and that upon her husband's death, his children would inherit all of his separate property."

"[Wife] even acknowledged that if she would have predeceased her husband, her son would have been entitled to inherit all of her separate property. Based upon the wife's interpretation of the Prenuptial Agreement, it is clear that the husband and wife's intent would have been defeated if the surviving spouse was permitted to receive an elective share. There is no doubt that the wife clearly understood that, by entering into the Prenuptial Agreement, she would not receive any of the husband's separate property upon his death, and that all of his separate property would go to his two children."

The only problem was that the prenuptial agreement didn't actually say what the parties thought they were agreeing to. In fact, the key language of the prenuptial agreement doesn't mention waiving spousal elective share rights at all, what it does say is, to say the least, "ambiguous":

"It is [husband's] intent that, in the event of his death, all of his separate property be given to his children, STEVEN M. LADD and BETHANY S. LADD, or as otherwise provided for in his Last Will and Testament."

Was that one sentence enough under F.S. § 732.702 to effectuate a valid waiver of spousal elective share rights? According to Dade County Probate Judge Maria M. Korvick it was, so she denied surviving spouse's elective-share petition. By the way, here are the portions of F.S. § 732.702 focused on by the 3 DCA:

"rights of a surviving spouse to an elective share *** may be waived, wholly or partly, before *** marriage, by a written contract**** Unless the waiver provides to the contrary, a waiver of 'all rights,' or equivalent language, in the property or estate of a *** prospective spouse *** is a waiver of all rights to elective share**** (emphasis added by 3d DCA)."

What I find most interesting about this case is how the 3 DCA seems to go out of its way to affirm the trial court's ruling denying the surviving spouse's elective share claim. Obviously swayed by a compelling set of facts, the 3 DCA arrived at the "right" conclusion as follows:

First: Assume findings of fact NOT included in the trial court's order:

"The trial court did not make a specific finding as to whether the Prenuptial Agreement was ambiguous or unambiguous. However, as the trial court allowed the wife to testify as to her intent when entering into the valid Prenuptial Agreement, we assume that the trial court found that the Prenuptial Agreement was susceptible of more than one construction and, therefore, ambiguous."

Second: Agree with findings of fact ASSUMED into the record:

"Upon review of the Prenuptial Agreement, we agree with the trial court's determination that the Prenuptial Agreement was ambiguous."

Third: After assuming factual findings into the record that weren't there to begin with, then agreeing with the trial court's assumed findings of fact, hold that "PAROL EVIDENCE," i.e., testimony by the surviving spouse completely undermining her own petition, was validly admitted to construe the "ambiguous" prenuptial agreement:

"As the agreement was ambiguous, the trial court properly admitted parol evidence to shed light on the intent of the parties when entering into the Prenuptial Agreement."

Presto! Good facts save the day!

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Who would have thought that "Dear Abby" could teach us something about practicing trusts and estates law in Florida? Read the following exchange (also available here) and ask yourself three questions:

• Assuming the estate planning attorney described below only represented the husband, did the attorney violate his confidentiality obligations under Florida Ethics Rule 4-1.6? Answer: Yes.
• Under Florida Bar Ethics Opinion 95-4, could the estate planning attorney represent both husband and wife in the scenario described below? Answer: No.
• Is this type of behavior great advertising for Florida's homestead protection laws and spousal elective share rights? Answer: Yes!!!

DEAR ABBY: My husband, "Girard," and I have been married two years. We both have children from previous marriages. Girard always told me I would have a home if I outlived him, even though his children will eventually inherit the property.

One day I asked Girard if it was in the will, and he said no, but that he and his children "had discussed it." When I asked him to put it on paper, he agreed. His attorney drafted a document for him to sign. After it had laid around the house for more than a week, Girard told me he had lost it. I reminded him to get another copy, sign and return it. After two more weeks passed with no signed document, Girard told me his attorney was "busy" and "would get to it when he could."

I decided to call the attorney myself. Well, you guessed it. I was told the papers had been executed. When I confronted Girard he admitted he had lied and promised to have the will done over. When I looked at the document he had signed, I saw that Girard was giving me 90 days to get out of the house after his death.

I was upset, so he tore up the document. Am I being unreasonable? I am 76, and he is 84. -- DOESN'T WANT TO BE HOMELESS IN BATON ROUGE

DEAR DOESN'T: It's not unreasonable to want a roof over your head should your husband predecease you. Thank heavens you found out now what was planned for you, rather than being hit with it while you were helpless and grieving. Now that you know how your husband thinks, consult an attorney of your own and find out exactly what your rights are as a wife in the state of Louisiana. The law can vary from state to state, and it is extremely important that you know what you are entitled to.

Source: Wills, Trusts & Estates Prof. Blog

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Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).

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Estate of Heid v. Heid, 863 So.2d 1259 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED)

Edward J. Heid died on December 18, 1999. Mr. Heid's surviving wife, Blanche A. Heid, sought to enforce her elective share rights against a trust holding real and personal property that had benefitted her predeceased husband. Circuit Court Judge Charles M. Holcomb dismissed the complaint with prejudice for failure to state a cause of action. Noting that Section 732.2155(1) explicitly limits Florida's expanded elective share rights to decedents dying on or after October 1, 2001, the 5th DCA affirmed the trial court's dismissal with prejudice.

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