Tom and Cathy (an imaginary couple) are married and have no children together. Tom has two adult children from a prior marriage; Cathy has no children. The couple reside in a Florida home which Tom owned before they got married. As a result, title to the home is only in Tom's name. Sadly, Tom dies unexpectedly of a heart-attack. At the time of his death, Tom had no Last Will and Testament. Cathy goes to see an estate attorney to find out about her rights regarding the home she and Tom had lived in for over ten years--she leaves in shock!
If you own an IRA account, you will usually name a person as beneficiary to receive the IRA at the time of your death. In most instances, the beneficiary can roll the IRA over into an IRA in the beneficiary's name and also defer taxes by withdrawing the funds over time. When a beneficiary is a responsible adult and when you want that person to be able to access the full IRA account, this is a good plan. The IRA can be rolled over into an inherited IRA and the beneficiary can withdraw the funds over time, thereby reducing taxes. The person can also name a beneficiary for the IRA to go to upon his or her death. In a situation where spouses have been married for a long time and have responsible adult children together, this works well.
Under Florida law, a spouse has the right to receive 30% of certain of his or her deceased spouse's assets. This is true notwithstanding whether the deceased spouse has excluded his or her spouse under his or her Last Will and Testament or Trust. So if the deceased spouse died having a Will which left nothing to his or her spouse, then the surviving spouse could still receive 30% of the applicable assets. The surviving spouse would have to make an election under Section 732.201, Fla. Stat. in order to be entitled to receive this share.
In Florida, a person's homestead is their principal place of residence and as homestead, the property has certain benefits and protections. These include: (1) exemption for creditor claims; (2) exemption from certain real estate taxes; and (3) protection of spouse and minor children. Prior blogs on this site have addressed the first two benefits listed; this blog will address the third.
We often have clients come into the office to discuss their estate planning. Not uncommonly, the term "homestead" will come up and after some discussion, it becomes clear that there is confusion on use of the term. One of the reasons for this confusion is that, from a legal perspective in Florida, homestead can refer to different things depending on the context.
As an estate planning lawyer, I sometimes have a client ask whether they are entitled to inherit from their spouse. In other words, can their spouse cut them out of an inheritance? For the most part, the answer is that one spouse cannot be "written out" altogether from their spouse's estate. Unless there's a Pre-Nuptial Agreement in place, the surviving spouse has certain rights that arise as a matter of Florida law.
As an estate planning lawyer in Florida, I'm often asked by clients if they can leave their estate to whomever they choose. For the most part, a person can leave his or her estate to whomever they choose but there are some exceptions.
A Pre-Nuptial Agreement (also sometimes called a Pre-Marital Agreement) is a contract between two prospective spouses setting forth their rights in two main scenarios: 1) if they marry and later divorce; and 2) if one spouse dies while the parties are still married. This blog will discuss how the Pre-Nuptial Agreement impacts a surviving spouse's right to inherit if one spouse dies.
When a person gets divorced in Florida and has a Will, the divorce essentially negates any rights under the Last Will and Testament as they relate to the former spouse.
In Florida probate, certain types of property are exempt and will be received by the surviving spouse, if there is one, and if there is no spouse, then by the decedent's children. However, steps must be taken to protect entitlement to exempt property.