Estate Planning

Nicole Quattrocchi | | Categories: attorney , Business Formation


Can you Disinherit in a Florida Will?

Chances are at one time or another you saw that scene in a movie referred to as the “reading of the will”. Individuals gathered in a lawyer’s office waiting with baited breath to hear what they have inherited from the recently deceased. There is always that one person who is outraged to hear he will receive NOTHING or even more insulting, one dollar!

People often wonder if they are obligated to leave assets to their children or surviving spouse or if they can disinherit them completely. In Florida, you can disinherit your heirs and spouse. However, you need to be aware there are laws in place to protect minor children as well as surviving spouses should you choose to do so.

Minor Children

There are situations where a parent may wish to disinherit a child, such as when the parent has been estranged from that child for years. Some parents may wish to “send a message” to a child by disinheriting him or her.

In Florida, if you wish to intentionally disinherit a child, it is typically better to leave the child nothing; do not state in the will why you are leaving the child nothing and do not leave some nominal amount like one dollar. The reason being, under Florida law, any person included as a beneficiary in a will becomes an interested party and therefore is entitled to notice of the probate. This means that person must sign all consents, receipts and waivers regarding the estate.

Although minor children may be disinherited, Florida law otherwise protects their rights. Specifically, this homestead law prohibits the head of the household from leaving his or her residence to anyone other than a spouse or minor child. Under this law, a surviving spouse is given use of the property for the remainder of his or her life, commonly referred to as a life estate, and then the home passes to the minor children. This homestead law only applies to children who were minors at the time of the parent’s death.

There are alternatives to disinheritance. One such alternative would be to establish a trust for the child, which would allow a trustee to control the trust property and give the heir an allowance or other stipulations. For instance, a decedent could create a trust that requires the heir to attend a drug rehab program and be regularly drug tested.

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Surviving Spouse

Florida law doesn't allow for the complete disinheritance of a spouse if the will was made while the couple was already married (If however the will was made before the marriage, the surviving spouse may be disinherited). Should an individual desire to disinherit the surviving spouse, the surviving spouse can inherit through other means. The surviving spouse is entitled to part of the deceased spouse's estate in most cases, even if the will fails to provide for him/her.

First, a surviving spouse may take what is called an elective share of the deceased spouse's estate. Florida’s elective share law is intended to protect a surviving spouse who has been disinherited or left only a small portion of the estate. A surviving spouse may elect to receive 30% of the estate, regardless of the terms of the will. However, a surviving spouse who waived his/her right to an elective share in a prenuptial or postnuptial agreement can't take the elective share after her spouse dies.

Additionally, a surviving spouse is entitled to a life interest in the real estate that served as the couple's main home. As stated previously, the remaining interest belongs to the deceased spouse's descendants, such as his/her children. This means that even if the deceased spouse's will left the home to someone other than his/her spouse, his/her spouse is still entitled to live in the home after his/her death so long as his/her will was made after the two married. This allows the surviving spouse to live in the home, rent-free, until he/she dies, at which time the remaining interest passes to the deceased spouse's heirs. As with an elective share, if the surviving spouse waived his/her homestead rights in a prenuptial or postnuptial agreement, he/she can't claim this entitlement after his/her spouse's death.

Finally, the surviving spouse is entitled to a family allowance, regardless of his/her share in the will, so long as the will was made after the two married. This allowance is a cash amount, not to exceed $18,000, and is in addition to an elective share and his/her interest in the marital home. The allowance is paid out of the estate's assets during the probate process and is meant to support the spouse during the probate proceedings. If the deceased has minor children who are not living with the surviving spouse, the allowance is divided between the surviving spouse and these minor children. The surviving spouse is not entitled to the money during the estate proceedings. And again, this family allowance is subject to a waiver in a pre or post marital agreement.

In sum, if you intend to disinherit an heir or a surviving spouse, it should be expressly stated in your will. Otherwise, a court could interpret the omission to be a mistake or a failure to update the will. Also, be aware the Florida law otherwise provides for minor children and surviving spouses with only a few exceptions. Wills should be drafted by an estate-planning attorney who can discuss your objectives and make recommendations as to the options available to convey property to the ones who matter most.

The Importance of Estate Planning: by: Nicole McNamara Quattrocchi

People often ask me “what’s the big deal with estate planning?” “Shouldn’t all my money and property go to my spouse anyway?” “Can’t I just tell my mom to care for my kids if I die?” “Shouldn’t my spouse automatically have power of attorney if I am incapacitated?”

The answer I give them is a resounding “no.” People are often misinformed as to the operation of law in these kinds of matters. You’re much safer and much better protected if you have done some estate planning.

There is no “automatic” grant of a guardianship or durable power of attorney so the short story is that if you haven’t properly prepared and you suffer an injury or illness that leaves you wholly or partially incapacitated, you need to petition the court for such things through a representative. In order to get to that stage, you (and your family and/or spouse) will have to undergo lengthy and financially exhausting legal procedures.

You may have discussed under what circumstances you’d like your family or spouse to “pull the plug” and who you would like to be that person. Unfortunately, without the proper paperwork on file, the person may be so grief-stricken that he/she cannot perform despite your wishes. Worse yet, there may be family members fighting regarding conversations that each of them remember having with you (which may or may not have actually occurred) in which the stories are conflicting. Sometimes people are emotionally overwhelmed and cannot remember conversations, sometimes they think conversations happened which did not, and sometimes people lie.

Worst of all, as many have experienced, to go through the probate system for inheritance is expensive and often involves family feuding. If your loved ones are not fully aware of your wishes for the distribution of your assets, people fight over who gets what and when. The death of a family member can cause a family to destroy itself. With a will in place, you and your wishes are protected. Families can still fight over a will, but at least they are clear on what your thoughts were when you made it.

Nothing is more tragic than a child who loses both parents simultaneously. These are the situations that we warn all parents of minors who grace our door to protect against. Personally, I would not want my children sitting in the hospital while my husband and I are dying or incapacitated and have to be taken home by child protective services because the family is arguing over who should be their guardian and who we would have chosen to be the guardian, had we gotten around to setting such an arrangement up before hand.

Estate planning is crucial to a family. It’s crucial to a single person. Unfortunately, we never know when our last day may be nor can we be sure that we won’t be struck down with an incapacitating illness that will require someone else to make our decisions for us. You never want to be unprepared. Therefore, stop delaying and ask the difficult questions. Make those decisions that we all don’t want to think about and create an estate plan. We can help you with these difficult decisions; all you need to do is make an appointment and ask.

Estate Planning in South Florida: The Domicile by: Robert J. Fraxedas

Estate Planning in South Florida: Considering the Matter of Domicile

1 : a dwelling place : place of residence : home

2 : a person's fixed, permanent, and principal home for legal purposes

3 : residence

For most folks, there is no question about where they are domiciled. They own or lease a residence, that is where they live, and there is nothing left to discuss.

Florida is different, particularly south Florida. Many Floridians live and work here all their lives, but some people, often called “snowbirds”, choose to live in Florida for part of the year. Consider: Florida has favorable weather which attracts retirees from all over the country; it is a real estate and state income tax haven; a major destination for immigration and tourism, and an important hub for international business and banking. In other words, not everyone wants to spend all their time in Florida, but many wealthier individuals choose to wait out the winters here, or at least have the option to do so. Others are keen on purchasing an expensive property here to shore up assets under the constitutional protection of Florida Homestead, but would prefer not to spend more time in Florida than they have to.

Why do we care? Domicile is important because it determines in which court probate proceedings, if necessary, will take place. Florida Statute 733.101 provides that venue for probate proceedings shall be in the county where the decedent was domiciled. If the decedent had no domicile in Florida, probate proceedings may be initiated in any county where the decedent’s property is located. Finally, if the decedent had no domicile in Florida and did not possess property in Florida, then probate proceedings may be initiated in any county where any debtor of the decedent resides. Put more simply, venue for probate can be where the decedent lived prior to death, or where he held assets, or where someone who owed him money lives.

But what does “domicile” mean exactly?

To see what the Florida Legislature means by “domicile”, we must flip to Florida Statute 222.17, which states that domicile exists where a person “maintains a place of abode” in the county which he or she “resides in” and “recognizes and intends to maintain as his or her permanent home”. This is obviously a rather subjective test, and it hinges largely on the activities and intention of the would-be domiciliary. An individual’s filing of sworn statements, such as a declaration of domicile or declaration of homestead are indicative, but not conclusive evidence of domicile (it is no secret that Florida is a rather tax-friendly state, and many people have tried to take advantage of that fact). Rather, the most reliable evidence of domiciliary intention in the eyes of Florida courts is the number of “contacts” an individual has in a jurisdiction. Any type of contact is relevant: business contacts, social contacts, active membership in local clubs, schools, places of worship, and political groups, to name a few. The point is that the best evidence of an individual’s primary residence and domiciliary intent can almost always be gleaned by examining and weighing the extent of their community involvement.

For additional guidance on the matter of domicile, it is helpful to look at Florida Statute 196.015, which provides a non-exhaustive list of factors. This statute is primarily intended to help property appraisers determine permanent residency, but it is also applicable to the question of domicile. The list includes the following factors:

  • Formal declaration of residency (Declaration of Domicile);
  • Designated mailing address;
  • Informal statements regarding residency;
  • Place of employment;
  • Termination of previous residency in another state or country;
  • Registration to vote in Florida;
  • A Florida driver’s license;
  • Florida tags on all vehicles;
  • Using a Florida address on federal income tax forms; and/or
  • Previously filed Florida intangible tax returns.

If you want to be sure that your estate will be handled by the state you expect, discuss these matters with your trusted estate planning advisor at the Quattro Firm right away