Image by Megan Tatem, redbook

Under the Florida Uniform Disposition of Community Property Rights at Death Act, married couples moving to Florida from community property jurisdictions bring their testamentary community property rights with them. This includes couples moving to Florida from any of our nine U.S. community property states, and also includes those moving to Florida from anywhere else on the planet that’s a community property jurisdiction (think virtually all of continental Europe and Latin America).

These valuable property rights can dramatically reshape the ultimate disposition of an estate, but are often overlooked by unsuspecting practitioners in common law states like Florida, who by training and experience are generally unaccustomed to spotting community-property issues … until it’s too late.

Community property in Florida? You bet!

Our nine community property states include our two most populous states (California and Texas), and collectively represent over 30% of the entire U.S. population. This slice of the populace is too big to ignore anywhere in the U.S., but especially so in Florida, the first choice for relocating retirees within the U.S., and the single largest recipient of state-to-state migration in the U.S. To the extent any of these domestic migrants are married and come from a community property jurisdiction, they bringing their testamentary community property rights with them.

And then there’s Puerto Rico. It’s not only the largest U.S. territory by population, it’s also a community property jurisdiction. One in three migrants to the U.S. mainland from Puerto Rico settles in Florida. If they’re married, they too bringing their community property rights with them. But it doesn’t end there.

Florida is the single largest recipient of all international migration to the U.S., and the number one destination for South American migrants to the U.S. To the extent any of these international migrants are married and come from a community property jurisdiction, they too bringing their testamentary community property rights with them.

A User’s Guide to Prosecuting Claims under Florida’s Uniform Disposition of Community Property Rights at Death Act:

OK, so there are probably way more Floridians walking around with testamentary community property rights than most of us would have guessed. Should probate attorneys be concerned? YES! These claims are subject to Florida’s ultra-short filing deadlines for probate creditor claims. As I reported here, if these property rights aren’t claimed on a timely basis — they’re forfeited. This is a huge trap for the unwary.

For those of you looking for a practical guide to evaluating these claims, you’ll want to read A User’s Guide to Prosecuting Claims under Florida’s Uniform Disposition of Community Property Rights at Death Act, which is my CLE presentation on the subject. Here’s an excerpt:

There are two distinct property systems in the United States: common law and community property. “Common law is the dominant property system in the United States and has been adopted by 41 states [including Florida]. The theory underlying common law is that each spouse is a separate individual with separate legal and property rights.” “The theory underlying community property is analogous to that of a partnership. Each spouse contributes labor (and in some states, capital) for the benefit of the community, and shares equally in the profits and income earned by the community. Thus, each spouse owns an automatic 50% interest in all community property, regardless of which spouse acquired the community property.”

A couple’s community property rights are a product of their marital domicile. By contrast, the law governing a decedent’s estate is a product of his or her domicile at death.

Black letter Florida law tells us that “[a]dministration of an estate is governed by the law of the decedent’s domicile.” In fact, the Florida Probate Rules ensure practitioners focus on a decedent’s domicile at death by explicitly requiring its disclosure in seven separate rules. But what about marital domicile (i.e., the “domicile that a husband and wife, as a married couple, have established as their home.”)? This distinct species of domicile is never even mentioned in Florida’s probate rules.

In today’s highly mobile society where a couple’s marital domicile often changes multiple times over a lifetime, this statutory blind spot is a trap for unsuspecting practitioners in a common law states like Florida, who by training and experience are generally  unaccustomed to spotting community-property issues. Why? Because even though Florida is not a community property state, if a person dies here but at some point in the past (no matter how many years ago) shared a martial domicile with his or her surviving spouse in a community property jurisdiction, that one fact alone can dramatically reshape the ultimate disposition of the entire estate, no matter what the decedent’s will or trust may say to the contrary.