What Happens When You Get Divorced and Fail to Update Your Last Will and Testament or Estate Planning Documents in Florida

In a Florida Probate proceeding one of the principal guiding aspects of the law is to give meaning and intent to the desires or wishes of the decedent.  Therefore the case law interpreting will provisions in Florida is construed to favor the intent of the decedent where possible.  One challenge that occurs is when a testator (person writing will) fails to update their estate planning documents to account for a divorce.   Florida Stat. 732.507 of the Florida Probate code provides some guidance:

732.507 Effect of subsequent marriage, birth, adoption, or dissolution of marriage.—

(1) Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.

(2) Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

The failure to update your estate plan after divorce will thus automatically create a scenario where the named spouse is artificially treated as though he or she has predeceased the decedent.  This may or may not completely alter the intended distribution scheme in the Last Will and Testament so understanding how your documents will be construed or simply drafting a codicil to clearly specify your intent is crucial and can save your family the expense of unnecessary probate litigation. (more…)

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What Happens When the Estate Doesn’t Have Enough Assets to Pay Out All the Items in a Will in a Florida Probate? Abatement

Florida probate administration has statutory rules governing what should happen if there are simply not enough assets to pay all the distributions identified in an estate.  These statutory rules are known as the rules of abatement.    These statutory rules will control unless the Last Will and Testament admitted to probate Court in Florida has a specific set of rules for which property should be satisfied or liquidated to pay an expense of administration.


Florida law recognizes different categories of gifts.  They are as follows

a) Specific gift: As the name implies, this is a specific asset of the decedent devised to a beneficiary. These gifts can only be satisfied by giving the  person the specific item of property.  If the item does not exist at the time of the death of the decedent, that gift or devise fails, meaning that the provision is not enforceable and the beneficiary is not entitled to an item of equivalent value.

Example: To my daughter Angelina, I give my engraved hunting rifle

b) Demonstrative Gift: A bit of a hybrid of the previous two, a demonstrative gift is a gift payable out of a particular source, but if not available then out of the general assets of the estate.

Example: I give 200 shares of Z Corp to my daughter Angelina if she survives me.  This is to be paid from my Z Corp shares which I have at death if it exists, otherwise my Personal Representative shall make provision for payment of the equivalent value of 200 shares of Z Corp from other assets in my estate then existing at my death.

c) General Gift: General gifts are payable from the general assets of the property and may be satisfied from a range of assets in the estate. Importantly, unlike a specific gift, if this item does not fail if it does not exist at the time of death.

Example: To my daughter Angelina, I give a 2016 Nissan Rogue, if I do not own such a vehicle at my death I direct my Personal Representative to purchase one and provide it to her.

d) Residuary Gifts: The term residue, or “rest, residue and remainder” of an estate is the catch all for the remaining assets after all specific assets have been distributed.

Example: “I give the rest, residue and remainder of my estate wherever situated whether it be personal or real property to my wife.” (more…)

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Can You Sell Your Homestead Without Your Spouse if You Are Married in Florida?

A recurring problem in Florida real estate transactions is an invalid conveyance or sale because of the failure to understand Florida’s restrictions as to the sale of a homestead property as to a married couple.  In Florida if your married the State of Florida, via its constitutional protections for its citizens imposes some restrictions on the sale of “homestead property” (ie your domicile) so as to advance the public policy interest of not leaving spouses or minor children without a home.  Those protections are derived from Fla. Const. Art. X 4(c) which provides the following language:

SECTION 4. Homestead; exemptions.—

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. (more…)

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How to Probate Property in Florida if You Live Out of State

Many of our Clients have loved ones who have passed away in Florida but they themselves are residents of a foreign state.  In this type of scenario, it is important to consider how to effectively probate an estate in Florida if you reside somewhere else.

A. If your Primary Proceedings will be in Florida:

If the deceased was a resident of Florida then primary probate proceedings should occur within the State of Florida:

Fla. Stat. 733.101 provides:

733.101 Venue of probate proceedings.

(1) The venue for probate of wills and granting letters shall be:

(a) In the county in this state where the decedent was domiciled.

(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.

(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.

(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.

(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.

So typically we will initiate the probate proceedings in the County in Florida the decedent was domiciled.   If you are a non-resident and looking to become the appointed Personal Representative (aka the Executor) then you can be a nonresident subject to he restrictions of Fla. Stat. 733.304 which provide: (more…)

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Florida Probate Basics: Should You Object to a Petition for Administration?

What is a Petition for Administration

In a Florida probate proceeding if you have not initiated the case, you may be surprised to receive, typically via US certified mail return receipt requested, a document called a Petition for Administration.  Florida law requires that this document be served in a manner with delivery tracking or in any other method of service acceptable under the Florida Rules of Civil Procedure (ie a process server).

The Petition for Administration is meant to set forth the basic information regarding the decedent, including his or her residence, date of death and basic family structure (if no will) or intestacy structure if there is a will.  This document starts a probate proceeding.  The document will also identify the venue (ie the county) where the proceeding shall take place.   Importantly it will also contain the Petitioner’s (the person executing the document) best guess as to the assets in the estate.  If the assets end up being less or more than initially anticipated in the Petition, the probate administration simply adjusts to encompass these changes through a later filing called an inventory.  The Petition will also identify either the beneficiaries in the estate (if there is a will) or the heirs entitled to a share in the probate assets by virtue of the family structure and rules of intestate succession.  Finally and importantly, this document is typically filed by a Petitioner seeking to become the Personal Representative of the Estate.  (more…)

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Tools to Prevent and Pursue Recovery for Elder Abuse in Florida

During the course of handling probate administrations, estate planning and contested adversarial probate cases throughout Florida, one dark and recurring theme has continued to arise.  Claims of exploitation and elderly abuse are rampant in our nation, and especially so in Florida.  The prominence of elder abuse in Florida may be in part due to the unique demographics of our state but sadly it is also in part caused by either indifference or willful ignorance of the problem.  This article is meant to provide a brief overview of the available tools in Florida to prevent elder exploitation and if you are unfortunate enough to be dealing with recovering from such abuse, a basic road map of some of your available remedies under current Florida law.


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How to Get the Most from Your Hurricane Irma Claim

Although Hurricane Irma was less damaging than first anticipated, it has caused major damage throughout the state.  Many families were left with property damage and no power.   Tree limbs, heavy wind driven rain and flooding have destroyed businesses and residential properties throughout the state.  Dealing with an insurance company after a loss can make a bad situation worse if you’re not adequately prepared.  Our office has handled and litigated hundreds of property insurance disputes, here is what we recommend: (more…)

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Establishing Paternity in Florida Probate Litigation Disputes

Florida Law has a mechanism for the establishment of paternity testing.  Fla. Stat. §742.12 provides a framework for the evidentiary use of paternity testing.  Importantly, Florida law requires a written sworn statement alleging the facts establishing the conflict or question regarding paternity.  Fla. Stat. 742.12 also provides the framework for the Court’s evidentiary analysis by specifically acknowledging that test results shall be filed with the Court and are admissible evidence and that certain statistical probabilities carry evidentiary presumptions.

In order to qualify to obtain DNA evidence from the relevant parties in a Probate Proceeding you must establish a discovery request under Fla. R. Civ. P. 1.360, “examination of persons.”  The rule provides as follows: (more…)

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Florida “As Is” Real Estate Contracts and the Duty to Disclose in Residential Home Sales

A recurring source of litigation in Florida revolves around the rights of buyers and sellers operating under an “As Is” contract for sale of residential property.

          A. The Seller’s Obligations to Disclose Under Florida Law

Despite the existence of contractual language excusing a seller of a property from representations (ie the “AS IS” language), Florida law provides a separate independent duty to disclose material facts that would substantially affect the value of a piece of property.  Johnson v. Davis, 480 So.2d 625 (Fla. 1985).   Importantly, the test for determining the materiality of a fact in a transaction of this nature is whether the fact “substantially affects the value of the property.”  Dorton v. Jensen, 676 So.2d 437 (Fla. 2nd DCA 1996). That means that when a seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.  Johnson, 480 So. 2d at 629.   The examples of such factors are endless but often include things like prior insurance claims, roof conditions, floods, construction defects, mold, termites, and septic/sewer system issues.  Ultimately, the determination of whether the defect or issue if established is material would be question for the jury.  A non-disclosure case requires the Plaintiff to establish the following elements: (more…)

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