As I previously posted here, “Dynasty Trusts” are estimated to hold up to $100 billion in assets. Dynasty trusts are only one subset of the trust options available to families. And as more and more of those families formalize their estate planning with the use of trusts for their children, more and more of those trusts will be targeted in divorce proceedings. Whether you represent a trust beneficiary considering a prenuptial agreement or a divorcing spouse attempting to shield his or her trust assets from Florida’s equitable distribution regime (i.e., 2004->Ch0061->Section%20075#0061.075″>F.S. § 61.075), you need to know what the key issues are. Step one, read the 1985 landmark Florida Supreme Court opinion Bacardi v. White, 463 So.2d 218 (Fla. Jan 31, 1985). Step two, read Colorado trust & estates attorney Marc A. Chorney’s recent Real Property, Probate and Trust Journal article entitled “Interests in Trusts as Property in Dissolution of Marriage: Identification and Valuation.” Continue Reading What Divorce Attorneys Need to Know about Trust & Estates Litigation

Just in case you’re even thinking about it, forget it if you’re in Australia! This story reports on an Australian widow who has been refused the right to impregnate herself with her dead husband’s sperm because she did not have his written consent to do so. The 36-year-old woman had been married to her husband for more than eight years when he was killed in a car accident in July 1998. Within 24 hours of his death the woman received court authority – and the consent of the dead man’s parents – to have his sperm taken and stored at a Melbourne hospital. Victorian Supreme Court judge Kim Hargrave subsequently ruled that Australian law did not allow the taking of sperm or ova from the dead for the purpose of reproduction if the person had not consented in writing to the procedure before their death.

My guess is that it wont be long before some probate judge somewhere in Florida has to grapple with the same issue. Also, is this one more item to consider when we’re working on a couples’ estate plan?

Source: Legacy Matters

McMullin v. Beaver, 2005 WL 1278870 (Fla. 4th DCA June 1, 2005) (Trial Court Reversed) When a trust terminates as of a certain date, it is reasonable to assume that winding up the affairs of that trust may take some time after the termination date. But what if the “winding up” process includes filing a lawsuit after the trust termination date? Indian River Circuit Court Judge Robert A. Hawley ruled that was too much, and granted final summary judgement against the plaintiff trustee, finding that the trustee lacked standing to bring the action because the trust was already terminated. Although unclear from this opinion, apparently the defendants in this case argued that the trustee was attempting to unduly extend the winding up period for the trust by commencing litigation after the trust’s termination date. The Fourth DCA disagreed, and reversed the trial court finding that the trustee did in fact have standing to file his lawsuit after the trust termination date. Continue Reading Fourth DCA says party being sued does not have the right to complain that a terminated trust’s “winding up” period is being unduly extended by the litigation

The March 2005 edition of the Yale Law Journal contains this interesting (perhaps even provocative) article by the noted Yale Law School Professor John H. Langbien. The logic underlying his thesis is somewhat circular in nature, although it is sure to warm the hearts of corporate fiduciaries (or more specifically, the “business development” folks at large banks). In a world dominated by an ever smaller group of financial-services conglomerates that maximize shareholder returns by cross selling an ever growing array of financial products and services to a single set of clients (the fancy word for this is “synergy”), it is no surprise that corporate fiduciaries seek to cross sell to their trust clients as well. The only problem is that they are hampered by these old fuddy duddy fiduciary self-dealing prohibitions that were developed within the context of a supposedly more genteel 18th century English business culture. The gist of Prof. Langbien’s article is that if today’s corporate environment conflicts with two-century’s worth of Anglo-American fiduciary common law, then there must be something wrong with the law (see what I mean by the circular nature of this argument). Prof. Langbien proposes a technical fix that could be easily incorporated into state statutory regimes governing trustees and other fiduciaries (e.g., personal representatives of estates). Continue Reading Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

The more intellectual firepower is applied to examining and improving Florida’s probate-related laws, the better off we all are. So it is good news indeed for Florida practitioners that according to this press release Adam Hirsch, a leading authority on wills and trusts, has been named the William and Catherine VanDercreek Professor of Law at The Florida State University College of Law.

Over the past two years, Professor Hirsch worked as a consultant to the subcommittee of the Real Property Probate and Trust Section of The Florida Bar that drafted a comprehensive revision to Florida’s statute covering disclaimers of inheritances. The Florida Legislature recently enacted the statute, and it awaits the governor’s signature.

Source: The Wills, Trusts & Estates Prof Blog

This article reports on a conflict between divorced parents over the remains of their son, who was killed in Iraq. Because of the growing number of such cases, Shelley Berkley, D-Nev., introduced this legislation earlier this month that would require soldiers to designate someone to handle their funeral arrangements. According to this article, the Department of Defense currently has the following policy in place:

Spouses of slain service members have first claim to the remains. If the victim is unmarried, the body goes to children over 18 in order of age. If the victim has no children over 18, remains go to parents in order of seniority, unless one parent was granted sole legal custody.

Source: Death & Taxes – The Blog

Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th DCA May 25, 2005) (Trial Court Reversed) In what will surely be a disturbing decision to all Florida nursing home administrators, the Fourth DCA just made it a lot tougher to avoid trials in nursing home cases. First, the Fourth DCA held that an arbitration clause administered by the American Health Lawyers Association “substantially limits the remedies created by [F.S. § 2004->Ch0400->Section%20023#0400.023″>400.023(2)] and is [thus] void as contrary to public policy.” Second, the Fourth DCA held that even if the AHLA’s arbitration clause were enforceable, which it’s not, a person acting under the health care proxy authority granted by F.S. § 2004->Ch0765->Section%20401#0765.401″>765.401 can only make “health care decisions,” and agreeing to arbitration is not a health care decision. If a nursing home wants to bind an incapacitated patient to a valid arbitration clause, it will have to seek the appointment of a temporary guardian pursuant to F.S. § 2004->Ch0744->Section%203031#0744.3031″>744.3031(1) to sign the agreement. As the concurring opinion put it . . .

If a nursing home wants to deal with someone competent to make such decisions, it has the right to seek the appointment of a guardian. For only a court appointed guardian could waive or compromise property rights, such as civil remedies in negligence or the right to trial by jury.