In our last newsletter, we discussed the latest statutory assault on the homestead citadel Assault on the Homestead Citadel. In this newsletter, we will discuss a recent case law assault on Florida’s broad homestead protections.
Effective July 1, 2017, the Florida Legislature has amended Florida Statute 732.2035 dealing with property entering into the “elective estate.” The Legislature has added into the list of assets that make up the elective estate for the first time, the decedent’s interest in property which constitutes the protected homestead of the decedent. The law establishing an elective estate or “elective share,” as it is known, is designed to protect surviving spouses from being completely disinherited. The law provides that a surviving spouse must receive at least 30% of the decedent’s “elective estate,” no matter what the decedent’s Will, Trust, or other type of estate plan might say. This statute then goes on to list all of the various types of properties and assets that are included in the calculation of the “elective estate.” Previously, the homestead was not included.
As most of you know by now, a legally married surviving spouse has all sorts of valuable inheritance rights under Florida Law. Often, the question of whether or not a decedent was validly married at the time of his or her death is the main question in a contested estate. The recent case of Cohen v. Shushan involves this very question.
For some reason, Florida has had more than its fair share of interesting adoption questions. Remember the man that tried to adopt his girlfriend! (Adoption Series Part 2, June 13, 2014. Other prior blogs on adoption include: How does an adopted person inherit? (Adult Adoption Series Part 1, May 30, 2014), Part 3(August 22, 2014), “Virtual” Adoption-No Court Required! (Adoption Series Part 4, September 8, 2014), Can Adoptee Challenge the Legality of Her Own Adoption in Order to Inherit from Her Biological Parent? (Adoption Series Part 5, May 15, 2015).
There is a new book out titled: The Death of Expertise. The subtitle is “The Campaign Against Established Knowledge and Why it Matters”. The book deals primarily with politics and reviewers have labeled it “unexceptional”, so I am not recommending that you read it. However, the title also is applicable to what has been happening in the world of estate planning.
Taking the proverbial busman’s holiday, I recently read the novel “A Perfectly Good Family,” by Lionel Shriver. The book was about what happens when three siblings inherit the family “mansion” in Raleigh, North Carolina, after the death of their parents. The father was a “great man” character, a judge and civil rights advocate, the mother was the typical woman behind the man of her era, the oldest son was a rebel and bully, the youngest son was the obedient one who never left home and took care of the mother during her last illness; and the middle daughter (and narrator) shared characteristics of each of her brothers.
Here is a new twist to follow our recent series titled “Possession is Nine-Tenths of the Law, Part 1”, “Possession is Nine-Tenths of the Law, Part 2”, and “Possession is Nine-Tenths of the Law, Part 3”. A case illustrating the difficulties in determining jointly owned versus individually property is the Connell case. In that case, the decedent was an elderly retired jeweler who liked expensive jewelry. While shopping with his wife, (a woman he married only eleven (11) months prior to his death), Mr. Connell bought a $60,000.00 men’s Rolex watch and a $20,000.00 men’s diamond ring. On both occasions he used funds from a checking account titled jointly with his wife; his wife knew of these purchases and did not object. Mr. Connell wore the watch and ring every day. Shortly before his death, he was hospitalized and gave the watch and ring to his wife for safekeeping. She put them in her purse. After Connell’s death, his son/personal representative asked the wife to return the watch and ring. She refused and the lawsuit ensued.
From the Cramer Law Center family to yours, we wish you the happiest of holidays and a healthy and prosperous New Year. Our office will be closed from December 26, 2016 until January 3, 2017, so that our entire team can spend some much deserved time with their families.
When we return to start the New Year, we will hold our first “Truth About Estate Planning” Workshop on Monday, January 16, 2017 from 9:30 a.m. until 12:00 p.m. This is a day off of work for many. So, if you haven’t had time to come to one of our workshops because they are held on week days, now is your chance! Our workshops are packed with vital information about estate planning, taxes, how to protect loved ones from creditors and predators - - and much more. We hope you will be able to join us. R.S.V.P. to 904-448-9978 to start your New Year off wiser and better informed about your estate planning options.
A frequent question which arises in probate matters is who owns the contents of a safe deposit box. The fact that a safe deposit box is leased to a husband and wife creates no legal presumption that property contained in the box is owned jointly by the husband and wife. The same principle applies to any safe deposit box owned jointly with (or with access permitted to) several people. For example, in one case the mere presence of bearer bonds in a safe deposit box leased to a husband and wife did not automatically become the property of the surviving spouse, but rather were deemed to be assets of the estate of the deceased husband.
In a different case, bonds located in a safe deposit box leased to a husband and wife were held to be jointly owned, upon proof that the bonds were purchased with funds kept in a joint bank account, were kept in the joint safe deposit box, each spouse had signed the lease to safe deposit box, each had a key and each had complete access to the box.
When the safe deposit box is leased in two or more names, the right of the co-lessee to enter the box is not affected by the death or incapacity of a co-lessee unless the lease contract expressly provides to the contrary. Nor is a co-lessee required to inventory anything removed from the safe deposit box post-death. Because the mere presence of property in a safe deposit box is not conclusive proof of ownership, the personal representative literally may be in a race to the bank to inventory and secure contents before a co-lessee can access and remove property from the box. If the co-lessee gains access to the box before the personal representative, it may become impossible to prove either the contents in the box or the value of those contents. As you can see, personal representatives must be very careful in dealing with safe deposit boxes - - - and have a good pair of track shoes.
Our last blog talked about a case where possession of “lost “cash did not result in the “finder” of the cash ending up with it. In a famous “treasure trove” case involving Mel Fisher and the wreck of the Atocha, the opposite result was reached. The Spanish ship Atocha sunk in the sea off the Marquesas Keys, in 1622 while on route Spain. Throughout history it was thought that the Atocha contained gold and other valuables. The treasure hunter, Mel Fisher, eventually found the Atocha after years of searching in the 1970s and recovered millions of dollars’ worth of artifacts. The State of Florida, the United States Government and the Government of Spain eventually made claims to ownership of the lost treasure. The court awarded Fisher possession of the salvage, reasoning that the title to abandoned property vests in the person who reduces that property to his or her possession. The court reasoned that disposition of a wrecked vessel whose very location has been lost for centuries as though its owner was still in existence, stretches a fiction to absurd lengths.
So, what we learned from these cases is: if property has been lost for centuries, “finders, keepers”. However, if the rightful owner of the lost property (or the daughter of the owner) is still around to claim it after it is found, “losers weepers”.
We hope that you now more fully appreciate the nuances of those famous legal principles - “finders keepers, losers weepers” and “possession is 9/10 of the law.”