If you were to die without a Will or Trust in Florida, you will be considered to have died “intestate.” Your “intestate estate” – i.e. any asset you own that has not been effectively disposed of or transferred to a beneficiary – will be distributed according to Florida intestate succession law.
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.
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.
Change is underway at Cramer Law Center. First, we are moving in 2 weeks to new offices at 4655 Salisbury Road, Suite 100A. (The move will take place the week of June 25). If you enter from Salisbury, we will be in the third of 3 buildings in the “Quadrant at Southpoint” office complex. You also can enter from Belfort Road. If you turn in at the entrance to the Borland-Groover Clinic and keep going past the clinic, we will be the first of the Quadrant buildings. I believe the official designation is “Quadrant II.” This location near I-95 and JTB is more centrally located than our present offices. Although traffic during rush hour is bad everywhere in Jacksonville, at least there is more than one way in and out of the new offices—as contrasted to our present location. We will have a map up on our website as soon as we relocate.
One of the cornerstones of our mission to create estate plans “that work” is our annual client meeting. Every spring client members of our LifeLegacy program gather to hear updates on the practice, learn about legislative and other legal changes of the past year, socialize, and discuss topics of vital importance to their estate planning. This year over 40 clients participated in one of our liveliest discussions ever.
Sometimes the best decision by a legislature is not to pass a bill. Among the bills that did not pass the Florida Legislature in 2017 was Senate Bill 228, which would have made POLST a law in Florida. It died in the Senate Judiciary Committee. About twenty states have enacted POLST legislation.
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.