In Florida a couple’s marital property rights are based on the common law’s “separate property” regime. According to the IRS, the “theory underlying common law is that each spouse is a separate individual with separate legal and property rights.” There’s a competing marital-property-rights regime known as “community property” that, as reported by the IRS, has been adopted by nine U.S. states (including California and Texas, our two most populous states). These nine community-property states represent about 30% of all U.S. citizens. And that’s not counting the residents of Guam and Puerto Rico ..read more

There are all sorts of good reasons for why you may or may not want to litigate your case in federal court. As explained in an excellent blog post by NY commercial litigator Will Newman: Litigants often prefer federal court for several reasons. Many believe the judges are better. Federal courts also usually have fewer cases and more resources, and so they may handle cases more quickly than state courts. Federal courts may have broader jury pools that span multiple counties than state courts, which may limit their juries to residents of one particular county. And federal courts may be less pol ..read more

If you’re going to sue a decedent’s probate estate, the first question you’ll want to ask yourself is if your lawsuit is going to be subject to Florida’s ultra-short limitations periods for probate creditor claims. And to answer that question you’ll need to figure out if the relief you’re seeking falls under the broad statutory definition for probate creditor “claims” found in F.S. 731.201(4), which provides as follows: “Claim” means a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or esta ..read more

Florida’s new Community Property Trust Act is the subject of two excellent Florida Bar Journal articles by Orlando attorney Joseph Percopo (see here and here). But nothing quite beats getting an insider’s view on new legislation from the person primarily responsible for its development and passage, which in this case is Naples attorney Travis Hayes. And it’s against this backdrop that I had the good fortune to attend the recent ATO conference where Travis shared his unique insights for estate planners considering this new tool. I was so impressed with Travis’ thoughtful explanations, practical ..read more

As reported in A jury rules a handwritten will found under Aretha Franklin’s couch cushion is valid: A jury in Michigan has ruled that a [2014] note handwritten by the late soul singer Aretha Franklin is valid as her will, according to The Associated Press. In 2019, Franklin’s niece found three handwritten documents around the singer’s home in suburban Detroit. One, dated 2014, was found underneath a couch cushion. Two of Franklin’s sons, Kecalf and Edward Franklin, argued through their lawyers that they wanted the latter note to override a separate will written in 2010. This litigation woul ..read more

Heirs property generally refers to family-owned property inherited by multiple generations without formal legal proceedings, resulting in the lack of clear title proving ownership. As explained in a 2018 Florida Bar Journal article entitled The Disproportionate Impact of Heirs Property in Florida’s Low-Income Communities of Color, these arrangements can lead to all sorts of negative consequences for family wealth creation. In response, in 2020 Florida adopted the Uniform Partition of Heirs Property Act (F.S. Ch. 64, Part II), which was hailed by housing advocates as an important and necessary ..read more

Florida statute section 46.021 tells us that “[n]o cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended [against the decedent’s estate].” However, how you go about prosecuting a case — and the length of time you have to file your lawsuit — changes dramatically after someone dies. Before someone dies you usually only have to sue them in one courtroom and worry about one set of statute-of-limitations periods. After they’ve died you’ll now have to sue them in at least two separate court proceedings and worry about two distinct sets ..read more

The same evidence that authorizes a probate judge to remove a personal representative nominated in your will could get her reversed on appeal for refusing to appoint this same person as personal representative at the outset. Same facts, same players, opposite legal results. How is this possible? Answer: there are dramatically different statutory criteria for the appointment and removal of personal representatives. Removal proceedings are governed by the broad scope of F.S. 733.504, disqualification-from-appointment proceedings are governed by the much narrower F.S. 733.303. For example, if the ..read more

If you’re a Florida probate attorney, sooner or later you’re going to have to figure out if a will or trust that was perfectly valid and legal in some other state or country, works in Florida. It’s not a matter of if, but when. Why? Because this state’s a magnet for people. Florida is the first choice for relocating retirees within the U.S., the largest recipient of domestic state-to-state migration within the U.S., the largest recipient of migrants to the mainland U.S. from Puerto Rico, and the largest recipient of international migration to the U.S. Florida’s no exceptions, strict-compliance ..read more

Oral (nuncupative) wills and un-witnessed handwritten (holographic) wills aren’t valid in Florida under any circumstances, no matter how strong the evidence is that they’re otherwise legitimate. On the other hand, if a handwritten will’s properly witnessed it’s as valid as any other will. Yes, handwritten wills work in Florida — as long as they’re properly witnessed. The controlling statute is F.S. 732.502(2), which provides as follows: Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a ..read more