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If ownership of a business asset is contested in an estate, the answer to “who gets it?” is often found in a contract, not some will or trust. Generally speaking, a decedent’s contractual obligations are going to trump any conflicting estate planning documents he might have signed. This key point is often overlooked, especially in probate proceedings where everyone’s focused on the decedent’s will.

Contract vs. Will = conflict = non-probate transfer:

For example, in the Blechman case there was a dispute over the decedent’s ownership interest in a limited liability company (LLC). In that case the decedent signed an LLC “operating agreement” (read: contract) containing the following clause:

… in the event of a death of a Member during the duration of this Agreement, the Membership Interest of the deceased Member shall pass to and immediately vest in the deceased Member’s then living children and issue of any deceased child per stirpes.

The decedent also signed a will and trust conflicting with this contractual obligation. Based on the text of the operating agreement the Blechman court ruled the contested LLC interests were never part of the decedent’s probate estate, but instead transferred immediately to his children as non-probate transfers, bypassing his conflicting estate planning documents entirely.

Bottom line, the decedent’s contractual obligations trumped his conflicting will and trust provisions.

Contract vs. Will = conflict = breach of contract:

Sometimes the controlling contract doesn’t result in a non-probate transfer, but still conflicts with the decedent’s will or trust. This kind of conflict sets up a breach of contract claim against the estate.

For example, in the Finlaw case there was a dispute over the decedent’s ownership interest in a partnership. In that case the decedent signed a partnership agreement (read: contract) containing the following clause:

Each partner, who shall ultimately become a surviving spouse, further agrees to have prepared and execute a last will and testament so as to vest his or her interest in this Partnership in his or her children (lineal descendants).

The decedent also signed a Will that conflicted with this contractual obligation. Based on the text of the partnership agreement the Finlaw court ruled the contested partnership interests had to go in accordance with the terms of the partnership agreement not the will.

Bottom line, the decedent’s contractual obligations trumped her conflicting will provisions.

Contract vs. Will = no conflict = harmony:

Then there are those cases where the decedent’s contractual obligations and the terms of his estate planning documents can be harmonized to work just fine with each other, which means all documents get enforced. That’s actually what happens in the vast majority of cases.

But we all know that no matter how well the documents work together, sometimes litigation is unavoidable. If you’re involved in one of these cases, expect the Blechman and Finlaw rulings to loom large. In this context, these opinions are too important to ignore.

And for those fights you’ll want to turn to a prior example of an appellate court examining — and rejecting — attempts to misapply Blechman and Finlaw. Thankfully, that’s exactly what we got in the Tita case discussed below.

Tita v. Tita, 334 So.3d 646, 2022 WL 610127 (Fla. 4th DCA March 02, 2022):

The decedent in this case was one of the owners or “members” of a family-owned LLC that held title to two buildings. The decedent intended for two of his children to get his stake in the LLC, and for his wife to receive all of his residuary estate. I’m guessing the decedent’s ownership interest in the LLC was worth way more than the value of his residuary estate, because his wife sued to invalidate the specific bequest of the LLC to the kids.

Contract vs. Will: harmony or conflict?

The decedent in this case signed an LLC operating agreement containing the following clause:

Death Buy Out. Notwithstanding the foregoing provision of Section 8, the Members covenant and agree that on the death of any Member, the Company, at its option, by providing written notice to the estate of the deceased Member within 180 days of the death of the Member, may purchase, acquire and redeem the Interest of the deceased Member in the Company pursuant to the provision of Section 8.5.

The decedent also signed a will containing the following specific devise, which gifts the same LLC ownership interest to two of his children:

Specific Gift of LLC Interest. I give all of my interests in the Layton Hills Properties, LLC, to my son, ANDRE TITA, and my daughter, SANDRA TITA, in equal shares. If any of them predecease me, the share of the deceased beneficiary will pass to that person’s descendants who survive me, per stirpes. If one of the named beneficiaries predeceases me without descendants, their share shall lapse and pass equally to the remaining share. The main asset of the Layton Hills Properties, LLC, is real property located in Layton, Utah that has two buildings on the property ….

Harmony it is!

First, the operating agreement’s buy-out clause doesn’t automatically transfer property to anyone or otherwise “vest” ownership of the LLC in anyone. So this isn’t some kind of non-probate transfer like in Blechman.

Second, the operating agreement’s buy-out clause doesn’t say who gets the LLC after the decedent’s death, as in Finlaw. Bottom line, the LLC’s buy-out clause and the decedent’s will don’t conflict, so both should be enforced. So saith the 4th DCA:

None of the cases upon which the wife relies compel a reversal.

Blechman involved an LLC operating agreement different than the one in this case. 160 So. 3d at 154–55. The Blechman agreement explicitly provided that the “[d]eceased’s membership interest immediately passed outside of probate to his children upon his death, thus nullifying his testamentary devise.” Id. at 160. In contrast, the Operating Agreement in this case anticipated that a transfer of a member’s interest would be through a testamentary devise; there was no explicit language addressing the disposition of a membership interest upon death.

Similarly, Finlaw involved a partnership agreement that specifically required a member’s will to vest a partnership interest in a deceased partner’s children. 320 So. 3d at 845. The Operating Agreement here does not specify to whom a decedent’s interest may be passed upon a member’s death, so there is no conflict between the Operating Agreement and the decedent’s will.

But if the kids don’t get the LLC, who gets the cash?

Undeterred, wife argued that because the LLC was exercising its rights under the buy-out clause, it was impossible for the decedent’s two children to actually receive their father’s LLC interest under his will’s specific devise. Why? Because if the estate is obligated to sell this asset back to the LLC, there isn’t going to be any LLC interest left in the estate to devise to the kids. Ergo: devise fails.

Wife then argued that if the specific devise of the LLC under the will fails, whatever was paid to the estate under the buy-out clause fell into the residuary, which all goes to her. Presto, she gets it all. Did this work? Nope.

Wife’s argument was undone by F.S. 732.514, a probate code section that doesn’t get talked about all that much, but is really important to keep in mind when assets are specifically devised (as in this case). Here’s what that statute says:

732.514 Vesting of devises.—The death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before a devise vests.

Based on F.S. 732.514 the court was able to elegantly harmonize the three controlling elements of this case: (1) the decedent’s contractual obligations under the LLC, (2) the decedent’s testamentary wishes under his will, and (3) Florida probate law governing what happens when a specifically-devised asset is sold by the estate. Answer: kids get the cash. So saith the 4th DCA:

The decedent’s bequest to appellees of his interest in the Company vested upon his death. See § 732.514, Fla. Stat. (2018). Once vested, the Operating Agreement controlled the nature of appellees’ interest and the terms of a buyout. …

Here, the decedent was in possession of a membership interest in the Company when he died. Nothing in the Operating Agreement operated to trump the will and effect a transfer of the membership interest outside of the will. The membership interest devised to appellees was a specific legacy that became part of the probate estate. See Babcock v. Est. of Babcock, 995 So. 2d 1044, 1046 (Fla. 4th DCA 2008) (“A specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” (quoting In re Est. of Udell, 482 So. 2d 458, 460 (Fla. 4th DCA 1986))). Because the Company elected to exercise its right to purchase the decedent’s membership interest from the estate, appellees are entitled to receive the proceeds of the sale under the will.

Below are links to the briefs filed with the 4th DCA.

  1. Initial Brief
  2. Answer Brief
  3. Reply Brief

So what’s the takeaway?

If you’re a probate-law nerd (and who isn’t?!), F.S. 732.514 is what makes this case interesting. Up until when that one-sentence statute makes its appearance, this case is basically an exercise in contract interpretation. Anyone can do that.

It’s once you get past the four corners of the contract and you have to apply its text in the real world of a contested probate proceeding against the backdrop of an arguably conflicting will, that knowing your stuff as a probate practitioner really pays off. Miss how F.S. 732.514 determines the outcome of this case, and you’ve completely misunderstood the nature of the case you’re litigating.

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The work we do as trusts and estates attorneys can alter the course of our clients’ lives. But it’s tempting to think of what we do as not being particularly important in the grand scheme of things. That’s a mistake, says Terrence Franklin, a trusts and estates litigator in LA.

A few years ago Terry made a life-altering discovery about his family’s history in antebellum Florida (involving a will contest, of course) that’s evolved into a public mission for racial justice. I’m a big fan of Terry’s work, and have written about it before. Terry recently gave a TED talk that was characteristically brilliant. Highly recommended.

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Probate litigation often turns on a person’s claimed “status” as a decedent’s family member. Examples of this kind of litigation include challenges to a person’s claimed status as a pretermitted child, or an adopted adult, or an adopted-away child, or a descendant by blood, or a posthumously conceived child, or a “legally” recognized father, or a “legally” married spouse.

In most cases a claimant doesn’t have to litigate his or her status until after someone dies. Which means your statute of limitations clock doesn’t start ticking until the moment of death. That’s not necessarily true for paternity actions in probate.

If you’re age 35 or older today and you hope to establish paternity for the first time in a probate proceeding, your statute of limitations clock started running decades before the putative father died (i.e., your claim is now time barred). On the other hand, if you’re age 34 or younger today, no problem, your statute of limitations clock doesn’t start running until after the putative father dies (i.e., your claim is not time barred). If you think this arbitrary dividing line is fundamentally unfair, I agree.

What went wrong?

Here’s the problem, F.S. 95.11(3)(b) imposes a 4-year statute of limitations for all paternity actions, starting as of the date the putative child turns 18. By the time paternity’s being litigated for inheritance purposes the putative deceased father is almost always an elderly man, which means his putative children are usually middle aged adults. And that means F.S. 95.11(3)(b) effectively bars most paternity actions in probate proceedings … even if you have irrefutable DNA evidence.

The so-called legislative fix to this problem came in 2009 when F.S. 732.108(2)(b) was amended for the express purpose of ensuring that F.S. 95.11 does NOT bar paternity actions in probate proceedings. But here’s the problem: this statutory change isn’t retroactive. It only helped potential claimants who weren’t already time barred in 2009. And that’s a big problem.

For reasons I’ve previously reported, because the 2009 legislative change to F.S. 732.108(2)(b) wasn’t made retroactive, if you happen to have been age 22 or older in 2009 (i.e., age 35 or older today) you are forever time barred from adjudicating paternity in a Florida inheritance case — even if you have irrefutable DNA evidence backing you up. On the other hand, if you were age 21 or younger in 2009 (i.e., age 34 or younger today), you’re good to go. Again, this arbitrary dividing line is a function of the 2009 legislative fix not being made retroactive. It’s also patently unfair.

The reason for why the 2009 statutory change wasn’t made retroactive was addressed by the 3d DCA in Rose v. Sonson:

“Once a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla. 1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff’s right to commence an action is a valid and protected property interest…. Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times…. Once an action is barred, a property right to be free from a claim has accrued.”).

I’m not convinced. First, all we’re talking about here is establishing a putative father’s default universe of potential intestate heirs in probate proceedings under F.S. 732.108, so no one’s infringing on his property rights or testamentary freedom (the man died intestate after all). Second, none of his other potential intestate heirs has any “vested property rights” that need protecting either. No one has vested property rights in a future expected (hoped for) inheritance that may or may not ever materialize.

Bottom line, the 2009 legislative change to F.S. 732.108(2)(b) preserving paternity actions for intestate probate proceedings should have been made retroactive, which would have avoided the inequitable system we now have in place.

Case study:

Bivins v. Douglas, — So.3d —-, 2021 WL 4888632 (Fla. 3d DCA October 20, 2021):

Against the backdrop of Florida’s inequitable treatment of middle aged adults seeking to establish paternity for the first time in an estate proceeding, there’s going to be a huge amount of pressure to find procedural workarounds in those cases where paternity is undeniable as a factual matter (think DNA evidence). One workaround that was tried in the White case —and failed — is the  “written-acknowledgement” exception. Bivins is important because just about every other possible workaround was tried in this case — and they too all failed.

Can a defendant contest the timeliness of a paternity action in a motion to dismiss? YES

If you’re on the plaintiff side of one of these cases, your first challenge is to survive a motion to dismiss. You might think that all you need to do at this stage of the game is simply include a blanket statement in your complaint alleging paternity. After all, to disprove that allegation a defendant would have to rely on facts outside the four corners of the complaint, which is usually a no-no in a motion to dismiss. And you’d be wrong. According to the 3d DCA, contesting paternity in a motion to dismiss is fair game.

[T]he blanket statement that “Pearce was the biological father” of Bivins, without more, fails to establish Pearce’s paternity. See Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020).

Section 95.11(3)(b) of the Florida Statutes imposes a four-year statute of limitations on an “action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.” Thus, in order to qualify as Pearce’s intestate heir, Bivins would have had to establish Pearce’s paternity within the time period allowed by the statute of limitations. Here, the limitations period ran in 1987, i.e., four years after Bivins reached the age of majority when he turned eighteen years old. Because Bivins failed to obtain a judicial declaration of paternity within that period. Bivins’s claim is barred by the statute of limitations.[FN4]

[FN4:] We disagree with Appellants’ contention that the trial court erred in considering the statute of limitations in ruling on the motion to dismiss because it required the court to consider matters outside the four corners of the complaint. The second amended complaint clearly showed the applicability of the defense given that it contains allegations as to Bivins’ paternity without reference to a declaration or other proof. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993).

Can the “marriage ceremony” exception get a plaintiff around the time bar for paternity actions? NO

Under F.S. 732.108(2)(a), your father’s legal paternity is established as a matter of law if your parents participated in a marriage ceremony at some time before or after your birth. Here’s the operative statutory text:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person … is … a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock …

In this case the plaintiff claimed he fell in this exception, so his paternity was established. Game over.

Not so fast said the 3d DCA. The marriage exception only applies if it involves your biological parents. If the father’s biological paternity is contested, the marriage exception doesn’t apply because it’s premised on the fact of biological paternity. And if you’re time barred from litigating that fact, you’re also time barred from claiming the marriage exception. Bottom line, defendant wins again, so saith the 3d DCA:

In another effort to circumvent the statute of limitations, Appellants assert that Bivins was born out of wedlock and that his biological mother and Pearce participated in a marriage ceremony after his birth. In Appellants’ view, Bivins is Pearce’s descendent. In support of this contention, Appellants cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant part: “For the purpose of intestate succession … a person born out of wedlock is … a descendant of his or her father … if: (a) [t]he natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.”

In making this assertion, Bivins has overlooked the fact that section 732.108(2)(a) requires proof that the marriage was between Bivins’ natural parents. This would still require a legal determination of paternity. See Thurston v. Thurston, 777 So. 2d 1001, 1004 (Fla. 1st DCA 2000) (“[A]lthough section 732.108(2)(a) permits a person born out of wedlock to establish an intestacy relationship between that person and a man married to his or her mother, … it requires the putative heir to also establish that the marriage was between his or her natural parents. Under the authority of In re Estate of Smith, [685 So. 2d 1206 (Fla. 1996)] such a probate proceeding is a proceeding relating to the determination of paternity to which section 95.11(3)(b) applies.”) (emphasis added)). Thus, Bivins would have had to prove that Pearce was his biological father to establish an intestacy relationship to Pearce on the basis of his marriage to Bivins’s mother pursuant to section 732.108(2)(a). Given that Bivins never obtained such a declaration from Pearce within the statute of limitations, this argument fails.

Can the “delayed discovery” exception get a plaintiff around the time bar for paternity actions if he’s not suing the decedent for fraud? NO

In this case the plaintiffs filed a declaratory action seeking to invalidate several trust instruments executed by the decedent. The plaintiffs weren’t suing the decedent for fraud. That whole in their case sunk their next attempted workaround to the filing deadline barring their paternity action: the “delayed discovery” exception. So saith the 3d DCA:

Here, Appellants contend that Pearce made repeated fraudulent misrepresentations that he was not Bivins’ biological father, and that said misrepresentations were made until nearly the time of Pearce’s death. Because of these fraudulent misrepresentations, Appellants claim that the facts giving rise to this cause of action were only discovered four years ago. In Appellants’ view, the action to establish paternity is timely, given that the alleged fraud occurred less than twelve years ago.[FN6] This argument fails.

The delayed discovery doctrine applies solely to causes of action that are specified in section 95.031, Florida Statutes, which includes claims of fraud, products liability, professional malpractice, medical malpractice, and intentional torts based on abuse. See Davis v. Monahan, 832 So. 2d 708, 709–10 (Fla. 2002) (refusing to extend the application of the delayed discovery doctrine to claims involving breach of fiduciary duty). Given that Appellants failed to specifically plead a claim for fraud on the part of Pearce, the delayed discovery doctrine does not serve to bar the application of the statute of limitations.

[FN6:]  Appellants cite to section 95.031(2)(a) for the proposition that “in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” However, as discussed above, Appellants never included a claim for fraud in any of the three versions of the complaint filed below.

Can the “equitable estoppel” exception get a plaintiff around the time bar for paternity actions if he wasn’t aware of the decedent’s paternity? NO

Plaintiff next argued that he would have filed a timely paternity action, but he was “induced” not to because the decedent “fraudulently” concealed the fact of his paternity. Therefore, the decedent’s estate is now equitably estopped from using that fraud as a defense. The problem with this argument is that it only works if the plaintiff knew of the decedent’s paternity decades earlier when a timely paternity action could have been filed. That’s not what plaintiff is claiming, in fact he’s claiming the opposite. Plaintiff strikes out again, so saith the 3d DCA:

The doctrine of equitable estoppel bars the application of the statute of limitations defense where an injured party recognized a basis for filing suit, but was induced to forbear filing suit during the limitations period by the party who caused the injury. W.D. v. Archdiocese of Miami, Inc., 197 So. 3d 584, 590 (Fla. 4th DCA 2016). The argument here is that Pearce fraudulently induced Bivins to forego his right to establish paternity by fraudulently concealing the fact that he was Bivins’ biological father, which Bivins did not discover until years later.

This argument fails because “equitable estoppel ‘presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.'” Black Diamond Props., Inc. v. Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) (citations omitted) (emphasis in original). In other words, Bivins would have had to: (a) be aware of the right to file a claim for paternity, but (b) then failed to do so because of Pearce’s fraudulent misrepresentation. First, the second amended complaint contains no allegations that anyone actively induced Bivins into foregoing filing a paternity suit. Further, Appellants’ argument centers on the fact that Bivins did not become aware of the facts underlying this cause of action, including Pearce’s status as his biological father, until recently given Pearce’s alleged fraud. The above facts render the doctrine of equitable estoppel inapplicable.

Lesson learned?

Again, if you get a call from someone age 22 or older in 2009 (i.e., age 35 or older today) who wants to establish paternity in an inheritance case, that person’s claim is now time barred. This arbitrary dividing line is unjust. So you’re going to want to find a workaround (especially if you have irrefutable DNA evidence backing you up). Stop and read Bivins and White (the failed “written exception” case). No matter how just your cause might be, there’s no sense banging your head against a wall (as well as wasting a lot of time and money) by litigating exceptions to the time bar if those same arguments have already been tried and rejected. You’ve been warned …

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Joaquin Perez had a life insurance policy with a death benefit of $250,000. His son and daughter were equal beneficiaries of the policy. Mr. Perez was tragically shot and killed by his mentally-ill son. The son was ultimately found not guilty of his father’s murder by reason of insanity. The question then became, does Florida’s Slayer Statute apply in this case even though there’s no murder conviction?

What’s the slayer rule?

At common law, a person couldn’t inherit property from someone they murdered. This was known as the “slayer rule.” You’d be surprised how often this rule comes up in inheritance cases (see here, here, here, here).

Florida codified the common-law slayer rule in F.S. 732.802. Here’s the operative text as applied to life insurance policies:

(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent.

Does Florida’s Slayer Statute require a murder conviction to apply? NO

Florida’s slayer statute doesn’t require a criminal murder conviction to apply. In the absence of a criminal murder conviction, the statute can be litigated in a civil case for inheritance purposes only. Also, while a criminal conviction requires proof “beyond a reasonable doubt,” Florida’s Slayer Statute applies only in the civil context to inheritance claims, which means the statute applies the much lower “greater weight of the evidence” burden of proof standard applicable in civil cases. Here’s the operative text of F.S. 732.802:

(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

Does the evidentiary burden-of-proof distinction between criminal and civil cases matter? Yes!

A person who’s acquitted of the crime of murder can still lose all his inheritance rights in a separate civil case under the exact same set of facts applying the lower burden of proof that controls in civil trials. In other words, the same murder trial can happen in two different courts, rely on the exact same evidence, and result in opposite outcomes.

The most famous example of this kind of opposite-outcomes-civil-vs-criminal case is the O.J. Simpson murder trial, where he was found both not guilty (in his criminal trial) and guilty (in his civil trial) for the same murders (Simpson was ordered to pay $33.5 million to the families of Nicole Brown Simpson and Ronald L. Goldman in the civil case).

Case study: Pacific Life Insurance Co. v. Matthew A. Perez et al., 2022 WL 2134959 (M.D. Fla. January 31, 2022)

In this case the court was asked to decide if the decedent’s son forfeited his rights to a share of his father’s life insurance money in spite of the fact that he was never convicted of murder. Son never responded to the civil suit. The court entered the following order confirming that YES, F.S. 732.802 actually means what it says: son is still disinherited, even though he’s not a criminally-convicted murderer.

The Court concludes that the evidence establishes Matthew unlawfully and intentionally killed his father. Notably, it is of no import that Matthew was ultimately found not guilty by reason of insanity because the Slayer Statute provides that “[i]n the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.” Fla. Stat. § 732.802(5). Also, for purposes of the Slayer Statute, the killing can be considered intentional and unlawful despite a finding of criminal insanity. See Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). Notably, in Congleton, a husband strangled his wife to death. He was charged with murder but was adjudicated not guilty by reason of insanity, never having gone to trial. The Slayer Statute was still applicable in the probate proceeding, even though the husband was never criminally convicted. Notably, the Court underscores that Matthew’s default in this action serves as his admission of the cross claim’s well-pled allegations, which include that he intentionally and unlawfully killed the Decedent.

In sum, the Slayer Statute provides that a beneficiary to a life insurance policy or other contractual agreement who unlawfully and intentionally kills the insured is not entitled to any benefit under the policy and it becomes payable as though the killer had predeceased the decedent. Additionally, the subject policy provides that a beneficiary’s interest in the policy ends if such beneficiary is determined to have predeceased the insured. The policy also provides that if there is a single surviving beneficiary, the amount payable will be the entire Death Benefits. Accordingly, Cristina is considered the single surviving beneficiary pursuant to the provisions of Fla. Stat. § 732.802(3) and the language of the subject policy and is therefore entitled to the entirety of the Death Benefits.

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One of the most confoundingly difficult challenges we all face as lawyers is what to do when a client’s cognitively declining in a way that’s clearly affecting her decision-making abilities, but it’s just as clear that she’s still able to understand your advice and make up her own mind about what she wants.

No matter what kind of lawyering you do, if you practice in Florida and haven’t dealt with this problem yet, just wait, sooner or later you will. Florida has the highest percentage of senior citizens of any state in the nation. And a natural consequence of a “graying” population is an increased prevalence of dementia.

Against this backdrop Florida’s supreme court recently published an opinion that (among many other ethics-rule changes) dramatically revised rule 4-1.14 (Client with Diminished Capacity). These much needed changes add new subdivisions to the rule, extensive new commentary, and generally bring Florida’s version of the rule in line with the current version of ABA Model Rule 4.14.

Florida Bar Rule 4-1.14 (Client with Diminished Capacity):

In practical, easy-to-understand terms Florida’s revised rule 4-1.14 squarely addresses the key questions you’ll want answered when representing clients with diminished capacity, such as:

  1. How is the lawyer-client relationship altered when a client has diminished capacity?
  2. When may a lawyer take “protective action” on behalf of a client with diminished capacity?
  3. What constitutes a “reasonable belief” that a client has diminished capacity?
  4. What protective actions may a lawyer take on behalf of a client with diminished capacity who “cannot adequately act in the client’s own interest”?
  5. When may a lawyer disclose to third parties information “relating to the representation of a client with diminished capacity”?

Fortunately, we’re not the first state to adopt the ABA model rule. Which means there’s lots of solid commentary out there if you’re interested in taking a deeper dive into the intricacies of this rule change or, more practically, understanding how these changes could profoundly impact your day-to-day practice. One of the best articles I found is The Delicate Ethical Requirements of Representing a Person With Diminished Capacity, by Del O’Roark, Loss Prevention Consultant, Lawyers Mutual Insurance Company of Kentucky.

Is taking protective action for clients with diminished capacity mandatory? NO

According to a Florida Bar News report entitled Rule amendment provides guidance for dealing with clients with diminished capacities, one of the primary reasons for why the newly-adopted revisions to rule 4-1.14 were introduced was to address a lack of clarity under the old rule regarding whether a lawyer’s required to seek the appointment of a guardian for a client with diminished capacity or required take any other form of protective action in these cases. That ambiguity is now gone. The revised rule

… now makes it clear that a lawyer is not required to seek a determination of incapacity, or the appointment of a guardian, or take other protective action with respect to a client,” [said Andrew Sasso, chair of the Real Property, Probate and Trust Law Section’s Ethics and Professionalism Committee]. “I think there was some debate before this change whether a lawyer was required to petition a court to have their own client’s capacity determined and appoint a guardian.” …

Many lawyers will [also] welcome the removal of a sentence from the comment section, Sasso said. The sentence stated that “if the person has no guardian or legal representative, the lawyer often must act as de facto guardian.” “Nobody understood what that meant,” Sasso said. “Exactly what is a ‘de facto guardian,’ and what are your obligations and fiduciary duties as a ‘de facto guardian?’”

What’s the nightmare scenario?

The reason the old rule’s ambiguity was a problem is that no one wants to get caught up in one of those nightmare scenarios where you’re damned if you do, damned if you don’t. As in, if your client has diminished capacity and a deal goes sideways or an estate plan’s overturned in a will contest you could get disbarred if someone files a Bar complaint alleging — in hindsight — that you should’ve taken protective action for your client or, alternatively, that you should not have taken protective action for your client. Either way, the professional risk was ever present.

For example, in In re Eugster, 166 Wn. 2d 293 (Wash. 2009), a Washington lawyer got his license suspended for 18 months (and a dissenting justice wanted to permanently disbar him) for filing a guardianship petition for an elderly client the lawyer believed was “vulnerable, and unable to understand her financial affairs, and perhaps being taken advantage of.” Sound familiar? And oh by the way, the lawyer in this case was operating under the same version of rule 1.14 Florida had in place prior to the latest round of revisions.

What are the Florida-specific innovations intended to avoid the nightmare scenario?

To avoid the Catch-22 trap lurking in the ambiguity of the old rule, Florida’s version of rule 1.14 now has two new sentences that aren’t found in the ABA model rule making clear that being someone’s lawyer doesn’t obligate you to insert yourself into their personal lives if you believe they’re sliding into incapacity (no one says you can’t, you’re just not required to do so). Here’s the first new Florida-specific sentence, which was inserted at the beginning of new subsection (b) entitled “protective action”:

A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.

And just to make sure practitioners fully realize how high the stakes are if they take any action to impose a guardianship on their own client, there’s a second new Florida-specific sentence inserted at the end of new subsection (b) entitled “protective action”:

A lawyer must make reasonable efforts to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.

But wait, why do we even need an ethics rule just for clients with diminished capacity anyway?

Normal attorney-client relationships are premised on the assumption that we’re working with clients that have the cognitive ability to understand the legal advice we’re giving them and make reasoned decisions based upon that advice all by themselves. In other words, it’s not a group project involving consultations with family members or the possibility of court intervention in some guardianship proceeding.

ABA Formal Opinion 96-404 (which explains much of the theory underpinning the current version of the ABA model rule) describes the normal interaction between a lawyer and client as follows:

A normal client-lawyer relationship presumes that there can be effective communications between client and lawyer, and that the client after consultation with the lawyer, can make considered decisions about the objectives of the representation and the means of achieving them.

However, again as noted in ABA Formal Opinion 96-404:

When the client’s ability to communicate, to comprehend and assess information, and to make reasoned decisions is partially or completely diminished, maintaining the ordinary relationship in all respects may be difficult or impossible.

It’s once you cross into that grey area of diminished (but still intact) capacity that the specially-tailored provisions of rule 4-1.14 kick in.

Illustration: it’s now a group project. Is that OK?

When working with an elderly client whose cognitive capacity is diminished it often helps to involve family members or some other trusted person in the representation. It’s now a group project. Is that OK? It is under rule 4-1.14, which provides the following guidance in the rule’s commentary:

The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of these persons furthers the rendition of legal services to the client and does not waive the attorney-client privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under subdivision (b), must look to the client, and not family members, to make decisions on the client’s behalf. A lawyer should be mindful of protecting the privilege when taking protective action.

And “consulting with family members … or other individuals … that have the ability to protect the client” is one of the protective-action examples provided in the rule’s commentary under the “Taking protective action” subheading.

But what about the client’s right to confidentiality? Doesn’t that bar disclosure of the client’s diminished capacity to friends and family members? Not under rule 4-1.14. New subsection (c) of the rule provides as follows:

(c) Confidentiality. Information relating to the representation of a client with diminished capacity is protected by the rule on confidentiality of information. When taking protective action under this rule, the lawyer is impliedly authorized under the rule on confidentiality of information to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

The commentary to this portion of the rule expands on the confidentiality issue with the following additional guidance.

Disclosure of client’s condition

Disclosure of the client’s diminished capacity could adversely affect the client’s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by rule 4-1.6. Therefore, unless authorized to do so, the lawyer may not disclose confidential information. When taking protective action under subdivision (b), the lawyer is impliedly authorized to make the necessary disclosures. Nevertheless, given the risks of disclosure, subdivision (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in these cases is an unavoidably difficult one.

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A surviving spouse’s right to an “elective share” reflects Florida’s strong public policy favoring the protection of surviving spouses. On the other hand, the fact that elective-share claims are subject to filing deadlines reflects a potentially competing public policy favoring the speedy and efficient conclusion of probate proceedings.

Both of these public policy priorities are at play in F.S. 732.2135, the probate code provision governing elective-share filing deadlines.

732.2135(2) says you can file a late elective-share claim only if a judge decides there was “good cause shown.” In other words — it’s not guaranteed, you need a court order, and if the extension is granted, the judge sets your new filing deadline.

(2) … For good cause shown, the court may extend the time for election. If the court grants the petition for an extension, the election must be filed within the time allowed by the extension.

In this subsection the statute’s tilted in favor of speed and efficiency by making it tougher to file late claims.

On the other hand, 732.2135(4) shifts the balance in the opposite direction, favoring spousal rights by preserving any late-filed elective share claim as long as you manage to file a timely extension petition. In other words — it’s guaranteed, no court order is needed, and you set your own filing deadline (all you have to do is file before the new deadline you asked for in your own petition).

(4) A petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election.

I don’t see how it’s possible to reconcile 732.2135(2) and 732.2135(4). And yet that’s exactly what the court was asked to do in the Futch case.

Case study: Futch v. Haney, — So.3d —-, 2021 WL 4760131 (Fla. 2d DCA October 13, 2021)

In this case a surviving widow filed not one — but three — petitions under F.S. 732.2135 asking for an extension of her elective-share filing deadline. Each additional petition for extension was filed within the time sought in the prior petition for extension. The day after she filed her third extension petition, surviving spouse went ahead and simply filed her elective share petition (which was within the time sought in her extension petition).

Do you need a court order to file a late elective-share claim? NO

All of the estate’s other interested parties objected to both the surviving widow’s extension petition and her elective share claim. The trial judge ruled in favor of the objecting parties, presumably choosing to enforce the “good cause” requirement in 732.2135(2) over the automatic tolling provision in 732.2135(4). Unfortunately for the objecting parties, on appeal the 2d DCA decided to go the other way. Here’s why:

Pursuant to [732.2135(1)], [Widow] was required to file her election within six months after the date of service of the notice of administration. However, within that time, she was permitted to petition the court for an extension, as provided in [732.2135(2)]. Such a petition for extension of time was required to “toll the time for making the election,” as provided in [732.2135(4)]. The statutory language is clear; because [Widow] had filed a timely petition for an extension of time, the time for making the election was tolled. … Each additional petition for extension was filed within the time sought in the prior petition, thus continuing to toll the time.

The plain language of the statute does not limit the amount of time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely subsequent petition seeking additional time, and it does not require a hearing or ruling on a petition in order for the time to be tolled. [732.2135(2)] addresses when a trial court may grant an extension (for good cause shown) and provides that if the trial court grants the extension, the election must be filed within the time allowed by the extension. But [732.2135(2)] does not require the trial court to grant a petition for extension before the time is tolled; such a reading would render meaningless the tolling provision in [732.2135(4)]. … Here, the tolling provision in [732.2135(4)] applied to [Widow’s] petitions. Because [Widow’s] election was filed during the tolling period, the election was timely.

This reading of the statute is fine if the intent is to prioritize spousal rights, which seems to be exactly what the 2d DCA had in mind:

Our conclusion is consistent with Florida’s strong public policy of protecting a surviving spouse. See Via v. Putnam, 656 So. 2d 460, 462 (Fla. 1995) (recognizing that the elective share statutes “suggest a strong public policy in favor of protecting a surviving spouse’s right to receive an elective share” (quoting Putnam v. Via, 638 So. 2d 981, 984 (Fla. 2d DCA 1994))); Velde v. Velde, 867 So. 2d 501, 507 (Fla. 4th DCA 2004) (noting “Florida’s strong public policy favoring protection of the surviving spouse”).

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Married couples take title to their homes in joint deeds all the time. The vast majority of these deeds are simple form documents that don’t go beyond the bare minimum needed to convey title. For example, the deed doesn’t have to say if the grantor intended to convey the home to them as “tenants in common” or as a “tenancy by the entireties” (TBE). And for most couples it doesn’t matter.

But when it does matter, this esoteric sounding property-law distinction can have profound implications. How the property’s owned can be the difference between whether you lose it to creditors in bankruptcy (or not), or whether it gets divvied up in a probate proceeding when the first spouse dies (or not). (A key characteristic of TBE property is that it automatically passes 100% to the surviving spouse without going through probate; tenants in common property doesn’t.)

Fortunately, we don’t have to litigate these property-law questions on a case-by-case basis. Unless a married couple’s deed includes a statement expressly showing a contrary intent, it’s presumed as a matter of law to be TBE. This presumption’s at the core of a lot of what we do as practitioners. Which brings us to the recent Ramos opinion.

Case study: In re: Estate of Ramos, — So.3d —-, 2021 WL 4561365 (Fla. 3d DCA October 06, 2021):

This case involved a couple who married in 1975. In 2013 they took title to their home in a deed that identified them as “Pedro Pablo Ramos and Eleida Farro Ramos; whose post office address is 14545 SW 293rd Street, Homestead, Florida, 33032; hereafter called the grantee.” Nothing more (which is the norm).

Wife died three years later in 2016. Husband died in 2020. If the house was owned as tenants in common, then wife could sign a will giving her 50% share of the house to her daughter from a prior marriage. If the house was owned as TBE, then wife’s will doesn’t matter, as soon as wife died the house transferred 100% to her surviving spouse without going through probate.

And that’s exactly the dispute the court in this case was confronted with. When husband died, wife’s daughter from prior marriage opened a probate proceeding for mom’s estate, claiming a 50% share of the house. Husband’s PR objected, claiming the property was TBE, which means it skipped wife’s estate, going instead 100% to husband.

Turning the TBE presumption on its head, daughter from prior marriage argued

… that because the deed contained no language indicating an estate by the entireties, it must be assumed to be a tenancy in common, thus [wife’s] one-half interest in the estate passed to her estate upon her death.

Nonsense, right? Yup. So what happened? Surprise! Trial judge ruled for daughter from prior marriage twice — once when the issue was first heard and again on a motion for rehearing. Wrong answer said 3d DCA.

Back to basics:

If a deed conveys title to two people who are married to each other it doesn’t have to say anything else to trigger the TBE presumption (not even that they’re married). So saith the 3d DCA:

American Central Insurance Company v. Whitlock, 122 Fla. 363, 165 So. 380 (1936), and its progeny, control this case. In the case of real property, the owners do not need to be described as husband and wife in the deed and their marital relationship does not need to be referred to in order to establish a tenancy by the entireties. Id. at 381. This principle was affirmed by the Florida Supreme Court in Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 54 (Fla. 2001), holding that where real property is acquired specifically in the name of a husband and wife, it is considered to be a “rule of construction that a tenancy by the entireties is created.” Thus, “[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.” In re Estate of Suggs, 405 So. 2d 1360, 1361 (Fla. 5th DCA 1981) (citing Losey v. Losey, 221 So. 2d 417 (Fla. 1969)).

And because the deed in this case didn’t say “we don’t want TBE,” it’s TBE. So saith the 3d DCA.

There is nothing in the 2013 special warranty deed to indicate that Eleida and Pedro Ramos did not intend to take title to the Homestead property as tenants by the entireties. Thus, when Eleida died, her one-half interest passed to Pedro. See Beal Bank, 780 So. 2d at 63, n.9 (citing Amer. Cent. Ins. Co. v. Whitlock, 122 Fla. 363, 165 So. 380, 381 (1936)). “The rule is rooted in the historical notion that a husband and wife are ‘but one person in law.’” Mitchell v. Mitchell, 344 B.R. 171, 174 (Bkrtcy. M.D. Fla. 2006) (quoting Winchester v. Wells, 265 F.2d 405, 407 (5th Cir.1959)).

We find the appellee’s arguments to be without merit and conclude on de novo review that the Homestead property belongs in Pedro’s estate by operation of the principle of tenancy by the entireties. We reverse the summary administration order, and remand with instructions that Maritza Ramos’s objection to summary administration be sustained and the summary administration order be dismissed.

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In our increasingly mobile society, adult guardianships often involve more than one state, raising complex multi-jurisdictional issues.

We have legal theories for resolving these civil procedure puzzles on a case-by-case basis (as demonstrated in the Morrison case), but the best long-term solution is adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which has pretty much been endorsed by just about every organization that might possibly have an interest in the issue, including the ABA Commission on Law and Aging, the AARP, the  National College of Probate Judges, the National Guardianship Foundation, the National Academy of Elder Law Attorneys, and the Alzheimer’s Association.

As the senior citizen capital of the U.S., Florida should lead on this issue, not lag behind.

As reported in a Legislative Staff Analysis for a 2021 bill focused on Florida’s seniors: “Florida has long been a destination state for senior citizens and has the highest percentage of senior residents in the entire nation. In 2018, Florida had an estimated 4.3 million people age 65 and older, approximately 20 percent of the state’s population. By 2030, this number is projected to increase to 5.9 million, meaning the elderly will make up approximately one quarter of the state’s population and will account for most of the state’s growth.”

And as of 2021, every state and territory in the U.S. has adopted the UAGPPJA — except for four. Unfortunately, Florida is one of those outliers! That’s a problem; we have the highest percentage of senior residents in the entire nation. Florida should be leading the charge on this front, not lagging behind.

Florida’s legislative efforts.

For what it’s worth, I’ve advocated for Florida’s adoption of the UAGPPJA since 2009, when legislation adopting the uniform act was introduced, then inexplicably withdrawn. Over a decade later there’s another push for adoption of the uniform act as part of Florida’s 2022 legislative session. Hopefully this time our legislators will get it done.

ABA Commission on Law and Aging Resource Page.

By the way, the folks over at the ABA Commission on Law and Aging really deserve special credit for being all in on the UAGPPJA. They’ve set up a resource page dedicated solely to advocating for this legislation that’s jam packed with useful information. Here’s a sample:

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One of the basic building blocks of modern estate planning in Florida is the “pour over” will/revocable trust combination. Which means it’s extremely common to find yourself administering a probate estate in which your primary — if not only beneficiary — is a residuary trust. In those cases, the first question you need to ask yourself is whether the trustee of the trust or a beneficiary of the trust is going to be the “beneficiary” or “interested person” you need to account to. In other words, does the probate look through rule apply?

What’s the probate look through rule and why should I care?

You can’t administer a probate estate unless you know who you’re supposed to be accounting to. Why? Because that answer determines, among other things, who are the estate’s beneficiaries entitled to receive a copy of the notice of administration (F.S. 733.212, Fla. Prob. R. 5.240) and inventory (Fla. Prob. R. 5.340), as well as who are the estate’s interested persons entitled to service of interim accountings (Fla. Prob. R. 5.345) and the petition for discharge and final accounting (Fla. Prob. R. 5.400), as well as who has standing to object to the PR’s fees (F.S. 733.617(7)) and the PR’s attorney’s fees (F.S. 733.6171(5)). So yeah, it’s a big deal.

F.S. 731.201(2) tells us that in “the case of a devise to an existing trust … the trustee is a beneficiary of the estate … [and] the beneficiary of the trust is not a beneficiary of the estate …” In other words, you don’t look through the trustee to the beneficiaries, you only account to the trustee.

However, if the personal representative and the trustee are the same person, there’s an obvious conflict of interest. In those cases we’re told you need to look through the trustee and account directly to the trust’s beneficiaries. Here’s the operative text in F.S. 731.201(2):

However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103 shall be regarded as a beneficiary of the estate.

This look through rule’s at the heart of the Mukamal case.

Case study: Duff-Esformes v. Mukamal, — So.3d —-, 2021 WL 5499686 (Fla. 3d DCA November 24, 2021):

This case involved a pour over will and revocable trust. The same two individuals served as personal representatives of the estate and trustees of the trust. The decedent’s surviving spouse received some kind of pre-residuary devise that had been fully satisfied (the opinion doesn’t give specifics), and she was also a lifetime income beneficiary of her husband’s trust.

The personal representatives petitioned for $91,035.14 in attorney’s fees and a $23,650.28 payment to themselves directly as trustees. When surviving spouse objected, the probate judge struck her objections for lack of standing because she’d already received her full pre-residuary distribution from the estate. What this ruling completely ignored was surviving spouse’s ongoing status as an income beneficiary of the trust.

In other words, surviving spouse wore two hats: pre-residuary devisee of the probate estate and income beneficiary of the trust. Focus on one to the exclusion of the other, and you’ve got yourself a reversal on appeal. Here’s why.

Is the income beneficiary of a residuary trust an “interested person” of the estate? YES

The term “interested person” excludes a beneficiary who’s received her complete distribution. Here’s the operative text in F.S. 731.201(23):

(23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. … The term does not include a beneficiary who has received complete distribution.

So as a pre-residuary devisee, surviving spouse is definitely not an interested person (she’s “received [her] complete distribution”). But as an income beneficiary of the residuary trust, she clearly has an ongoing economic stake in the amount of funds going into her trust, which loops her back into “interested person” status for purposes of the probate proceeding — with standing to object. So saith the 3d DCA:

By virtue of her status as lifetime income beneficiary of the residuary Trust, Duff-Esformes is “expected to be affected by the outcome” of the fee petition. Every dollar the co-personal representatives expend from the administration of the Estate will reduce her resultant income from the residuary Trust. As such, Duff-Esformes qualifies as an “interested person” under section 731.201(23) with standing to contest the petitioned increase in compensation.

Is the income beneficiary of a residuary trust a “beneficiary” of the probate estate? YES … if the look through rule applies.

For probate administration purposes, the term “beneficiary” excludes a beneficiary who’s received her complete distribution of the estate. Here’s the operative text in F.S. 731.201(2):

(2) “Beneficiary” means heir at law in an intestate estate and devisee in a testate estate. The term “beneficiary” does not apply to an heir at law or a devisee after that person’s interest in the estate has been satisfied.

So as a pre-residuary devisee, surviving spouse is clearly not a beneficiary (she’s “received [her] complete distribution”). But if, as in this case, the look through rule applies because the same individuals are serving as both personal representatives and trustees, surviving spouse (as beneficiary of the trust) is looped back into “beneficiary” status for purposes of the probate proceeding — with standing to object. So saith the 3d DCA:

Importantly, the statute carves out an exception for persons to be regarded as beneficiaries in circumstances where “each trustee is also a personal representative of the estate.” In the instant case, both co-personal representatives, Mukamal and Appel, are also co-trustees of the Trust. As such, Duff-Esformes, as a qualified beneficiary of the Trust entitled to lifetime distributions, must be “regarded as a beneficiary” of the Estate even though her interest in the Estate has been satisfied.

So what’s the takeaway?

F. Scott Fitzgerald famously wrote: “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” This case is a good test of that maxim. Can we, as probate practitioners, function while holding the following two opposing ideas in our minds at the same time: the same person can simultaneously be both a beneficiary of the estate who’s already received her entire distribution (as a pre-residuary devisee) and a beneficiary of the estate who will never receive her entire distribution (as the lifetime income beneficiary of a residuary trust).

Also, you can’t make sense of Florida’s Probate Code unless you approach it as a cohesive body of law that’s meant to be read together. Pick and choose standalone clauses here and there, and you might cobble together a winning argument before a busy trial court judge, but you’re going to run into problems on appeal. That’s what happened here. So saith the 3d DCA:

We find that the co-personal representatives’ argument … violate[d] the axiomatic principle “that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992).

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This is the third and final installment of the 2021 legislative update. It covers a suite of interrelated new statutory changes intended to protect senior citizens from exploitation as well as reporting on Florida’s distinction as the first state in the nation to adopt an “eldercaring coordination” law.

Part 1 covers two major new additions to our Trust Code intended to bolster Florida’s competitiveness in the high stakes trust business marketplace. And part 2 covers a broad range of bread and butter statutory changes that could have a big impact on our day-to-day practice, but may not get the kind of publicity and notice they otherwise deserve.

The elder abuse epidemic.

First some context. Elder abuse is a huge problem in Florida. Consider the following research compilation from the Legislative Staff Analysis for HB 1041:

As the country’s “baby-boom” population reaches retirement age and life expectancy increases, the nation’s elder population is projected to increase from 49.2 million in 2016 to 77 million by 2034. Florida has long been a destination state for senior citizens and has the highest percentage of senior residents in the entire nation. In 2018, Florida had an estimated 4.3 million people age 65 and older, approximately 20 percent of the state’s population. By 2030, this number is projected to increase to 5.9 million, meaning the elderly will make up approximately one quarter of the state’s population and will account for most of the state’s growth.

Elder populations are vulnerable to abuse and exploitation due to risk factors associated with aging, such as physical and mental infirmities and social isolation. In Florida, almost 1.3 million senior citizens live in medically under served areas and 1.4 million suffer from one or more disabilities.

According to the Department of Justice, approximately 1 in 10 seniors is abused each year in the United States, and incidents of elder abuse are reported to local authorities in 1 out of every 23 cases. Elder abuse can have significant physical and emotional effects on an older adult, and can lead to premature death. Abused seniors are twice as likely to be hospitalized and three times more likely to die than non-abused seniors.

Elder abuse occurs in community settings, such as private homes, as well as in institutional settings like nursing homes and other long-term care facilities. Prevalent forms of abuse are financial exploitation, neglect, emotional or psychological abuse, and physical abuse; however, an elder abuse victim will often experience multiple forms of abuse at the same time. The most common perpetrators of elder abuse are relatives, such as adult children or a spouse; friends and neighbors; and home care aides. Research indicates that elder abuse is under reported, often because the victims fear retribution or care for or trust their perpetrators. Elder abuse deaths are more likely to go undetected because an elder death is expected to occur, given age or infirmity, more so than other deaths due to abuse such as a child death or a death involving domestic violence. Some experts believe this may be one of the reasons elder abuse lags behind child abuse and domestic violence in research, awareness, and systemic change.

[1] Florida’s “slayer rule” expanded to cover elder abuse + other new tools in the fight against elder abuse.

Against this backdrop HB 1041 enacted a slew of legislative changes, all focused on curbing the elder abuse epidemic confronting the U.S. generally, and Florida in particular. Each of these changes could reasonably be the subject of its own article or blog post, and I’m sure we’ll feel their collective impact for years to come. But for now, here’s a summary of this year’s suite of new legislative tools available to us as Florida attorneys in the fight against elder abuse, as provided in the bill’s Legislative Staff Analysis:

The bill creates s. 732.8031, F.S., and amends s. 736.1104, F.S., to prohibit a person who commits any of the following offenses on an elderly or disabled person in any state or jurisdiction from serving as a personal representative or inheriting from the victim’s estate, trust, or other beneficiary assets:

  • Abuse;
  • Neglect;
  • Exploitation; or
  • Aggravated manslaughter.

A final judgment of conviction for abuse, neglect, exploitation, or aggravated manslaughter of the decedent creates a rebuttable presumption that a convicted person may not inherit a beneficiary asset. In the absence of a qualifying conviction, the court may determine by the greater weight of the evidence whether the abuser’s, neglector’s, exploiter’s, or killer’s conduct as defined in ss. 825.102, 825.103, or 782.07(2), F.S., caused the victim’s death, in which the person may not inherit. However, a convicted person may inherit from an estate, trust, or other beneficiary asset if it can be shown by clear and convincing evidence that the capacitated victim reinstated the person as a beneficiary.

The bill also:

  • Clarifies who may be liable in the event a person is unable to inherit because of abuse, neglect, exploitation, or aggravated manslaughter.
  • Requires property acquired as a result of abuse, neglect, exploitation, or manslaughter of an elderly person or disabled adult to be returned.
  • Provides that an obligor making payment according to the terms of its policy or obligation is not liable for said payment unless more than 2 business days before payment, it receives written notice of a claim under the bill.
  • Amends s. 16.56, F.S., to authorize the Office of Statewide Prosecution to investigate and prosecute crimes under chapter 825, F.S.
  • Amends s. 825.101, F.S., to define the terms:
    • “Improper benefit” as any remuneration or payment, by or on behalf of any service provider or merchant of goods, to any person as an incentive or inducement to refer customers or patrons for past or future services or goods; and
    • “Kickback” as having the same meaning as in provided in s. 456.054(1), F.S.
  • Amends s. 825.102, F.S., to prohibit unreasonable isolation of an elderly person or disabled adult from his or her family members.
  • Amends s. 825.103, F.S., to:
    • Prohibit seeking out appointment as a guardian, trustee, or agent under power of attorney with the intent to obtain control over the victim’s assets and person for the benefit of a perpetrator or a third party.
    • Prohibit intentional conduct by a perpetrator who modifies or alters the victim’s originally intended estate plan to financially benefit either the perpetrator or a third party in a manner inconsistent with the intent of the elderly person or disabled adult.
    • Expand the meaning of exploitation of an elderly or disabled person to include breach of fiduciary duty resulting in a kickback or receipt of an improper benefit.

The bill also amends s. 825.1035, F.S., to authorize an agent under a DPOA to petition for an injunction for protection against exploitation of a vulnerable adult, and to allow a court to make a one-time extension of the injunction. The bill amends the statutory form for a petition for an injunction for protection against exploitation of a vulnerable adult in s. 825.1035, F.S., to include sufficient identifying information about the petitioner or the vulnerable adult.

By the way, for more on why expanding our slayer statute to cover elder abuse cases is a good idea, you’ll want to read Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance, by Natasa Glisic. Here’s an excerpt:

As elder abuse is on the rise, the states have realized that something more needs to be done to combat it. There are currently eight states that have expanded their Slayer Rule statutes to include perpetrators of elder abuse. Just like the original Slayer Rule disinherits the heir or beneficiary who has killed the decedent, the elder-abuse Slayer Rule disinherits the heir or beneficiary who has abused the decedent. The public policy behind expanding the Slayer Rule is to prevent perpetrators of elder abuse from profiting from their wrongdoing. The perpetrator will be deemed as to have predeceased the decedent or to have disclaimed his or her interest in the decedent’s estate. As previously mentioned, family members are usually the perpetrators of elder abuse and the expansion of the Slayer Rule will work effectively to penalize abusers. The expansion is effective because family members are the ones to inherit under a state’s intestacy laws and in many instances are beneficiaries under the decedent’s last will and testament. Some perpetrators are motivated to commit financial abuse in order to purposefully modify the victim’s estate plan. Others purposefully engage in abuse in order to speed up the victim’s death so they can inherit. As the Slayer Rule is applied to cases of elder abuse, the wrongdoer is accordingly punished while the future abuser is deterred from committing elder abuse. …

Expanding the Slayer Rule will not only be beneficial for public policy and let our elderly population know that the law is on their side, but it will also deter potential abusers. As many forms of elder abuse are fueled by the abuser’s greediness and possibility of inheritance, the abuser’s knowledge of the repercussions barring inheritance will reduce his or her incentive to abuse. For example, a caretaker-child will be less likely to refuse to provide his or her aging parent with decent living conditions because he does not want to spend his or her would-be inheritance money when he knows he could be completely barred from inheriting if found guilty or liable for elder abuse. Elder abuse caused by monetary incentives will be reduced because the abuser will be deterred by the possibility of statutory disinheritance.

[2] Florida enacts first-in-the-nation “eldercaring coordination” law.

If you get a call from a desperate family member wanting to protect mom or dad from obvious financial exploitation or some other form of abuse, your first question should be: is the parent legally incapacitated? If the answer’s “yes,” your path is clear and in many ways these are the “easy” cases. There exists a well defined, judicially enforceable mechanism for addressing the problem at hand: guardianship.

Unfortunately, the guardianship route doesn’t solve the problem of the elderly family member who isn’t quite legally incapacitated, but is incontrovertibly vulnerable due to diminished capacity. These “in between” cases are always the hardest calls. Courts are reluctant to interfere with the rights of individuals who have legal capacity, and the legal representation of these individuals is challenging. We now may have a solution for some of these in-between cases; it’s called “eldercaring coordination,” and it’s codified in new F.S. 44.407.

Florida is the first state in the nation to statutorily recognize eldercaring coordination, a court-ordered dispute resolution process for aging persons and their families that’s not dependent on a prior adjudication of incapacity. The new eldercaring coordination law resulted from a groundbreaking collaboration between the Florida Chapter of the Association of Family and Conciliation Courts and the Association for Conflict Resolution.

As reported in a Florida Bar News article entitled Eldercaring legislation becomes law:

Sen. Dennis Baxley, R-Ocala, and Rep. Brett Hage, R-The Villages, sponsored the legislation, which won unanimous approval of all committees and subcommittees of reference and on the floors of both houses during the 2021 Legislative Session. Gov. Ron DeSantis signed CS/CS/HB 441 on June 4 and §44.407, Florida Statutes, became law on July 1.

Florida’s new eldercaring coordination statute resulted from a collaboration between the Association for Conflict Resolution and the Florida Chapter of the Association of Family and Conciliation Courts. In 2014, Linda Fieldstone and Fifth Circuit Judge Michelle Morley created and co-chaired the FLAFCC Task Force on Eldercaring Coordination, which included 20 statewide entities and a well-credentialed advisory committee. The task force partnered with the Association for Conflict Resolution Task Force on Eldercaring Coordination — 20 U.S. and Canadian organizations — and developed guidelines for eldercaring coordination. The guidelines are based on parenting coordination, a dispute resolution process for parents in high conflict regarding child-related issues.

In 2015, the two task forces merged into the Elder Justice Initiative on Eldercaring Coordination. Eight Florida circuits are pilot sites, paving the way for easily replicable pilot sites throughout the U.S., Canada, and abroad. On World Elder Abuse Awareness Day 2018, the United Nations recognized eldercaring coordination as an Awareness to Action Model for the protection of aging persons.

Judge Morley said eldercaring coordination is a process that has been needed for a long time.

“Every time I talk about it with to someone, I see people nodding their heads, acknowledging that they know someone whose family has been hurt by conflict over the care of an aging loved one,” she said. “It breaks my heart to think of the wonderful and amazing people who are at the center of that family conflict in their waning years. They know they are not the strong, independent people they used to be, and they are dependent on people who fight about them. In court, this aging person is put in the spotlight — alone, afraid, confused, and often unheard — as family members argue about their personal abilities and future. Eldercaring coordination is a person-focused and strength-based process totally unlike the adversarial court process. It is a more sensible way to address the emotional and private family issues surrounding the care and autonomy of elder loved ones.”

For me, this is essentially an elder-abuse protection tool that aids diminished, vulnerable, elderly adults that don’t meet the strict legal definition of “incapacity,” but clearly need help. Anyway, for a more formal summary of this new statutory tool you’ll want to read the bill’s Legislative Staff Analysis. Here’s an excerpt:

The bill creates s. 44.407, F.S., establishing a statutorily-authorized alternative dispute resolution option in which court-appointed eldercaring coordinators assist elders, their legally authorized decision makers, and their family members in resolving high-conflict disputes that can impact an elder’s safety and autonomy. …

The bill authorizes a court to appoint an eldercaring coordinator and refer the parties to eldercaring coordination upon:

  • Agreement of the parties;
  • The court’s own motion; or
  • Any party’s motion

… A court may only refer the parties to eldercaring coordination to address disputes regarding an elderly person’s care and safety, and may not refer the parties to eldercaring coordination in actions brought under chapters 732, 733, and 736, F.S., which relate to wills and trusts.

… The bill requires the eldercaring coordinator’s fees to be paid in equal portion by each party referred to the eldercaring coordination process and requires the referral order to specify the percentage of eldercaring coordination fees each party must pay. The court may determine the allocation among the parties of fees and costs and may make an unequal allocation based on the financial circumstances of each party …  If the court finds a party is indigent, the court may not order eldercaring coordination unless public funds are available to pay the indigent party’s portion or a non-indigent party agrees to pay the fees and costs.