In Florida, any adult can file a petition in state court to determine if another person is incapacitated.  If a person is determined to be incapacitated, a guardian will be appointed by the court.  People often ask us how the court determines that a person is incapacitated.  The process is explained in Florida Statute Section 744.331. 744.331(3)(a) states the following, in pertinent part:

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Disinherit Spouse

The short answer is no.  A surviving spouse is entitled to a portion of a deceased spouse’s estate even if the deceased has a valid will or trust leaving nothing to the spouse (Florida Statute 732.201).  A surviving spouse is entitled to what is known as an “elective share” of the deceased’s estate.  A surviving spouse may choose to inherit the “elective share” of the estate.  The “elective share” is equal to 30% of the “elective estate.” 

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Too often we encounter skeptics who ask why they would need to have their estate plan reviewed annually, as we do in our LifeLegacy Program. “What could possibly change?” they ask. “Lots,” we answer. Here is just one example of something that has come up that has unintended consequences that are detrimental to most living trust plans.

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The Florida legislature thankfully has made it more difficult for a spouse to “accidentally” waive their homestead rights through vaguely worded or boilerplate deeds. Typically, constitutionally protected homestead rights only are waived in antenuptial agreements. However, those rights technically could be waived in any valid written contract, including a deed. Because prior cases had held that signing a deed with broader language than you knew could constitute a waiver, new statute F.S. 732.7025 now requires the following language to appear in a deed if it is to constitute a waiver of homestead: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.” This is a welcome change.

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