Florida Probate & Estate Litigation Lawyer

The elective share is just one factor in determining how much the surviving spouse will inherit in Florida. For example, if there is no provision for disposition of the deceased’s assets, the surviving spouse will receive either the entire estate or half of the estate—more than he or she would receive through the elective share.

Alternatively, the deceased spouse may have bequeathed the surviving spouse the full estate, or some portion of the estate that is larger than the elective share.

If the surviving spouse chooses the elective share, he or she will receive 30%, though calculation of that share is not as straightforward and clear as the percentage makes it sound

It is also important to note that the surviving spouse—like any beneficiary—receives bequests from the estate based on the value of the estate remaining after debts of the estate, taxes, and costs of administration have been paid. Thus, 30% or 50% of the estate won’t be equal to 30% or 50% of the deceased spouse’s property. And, if the deceased left the surviving spouse a specific bequest, such as $250,000 rather than a share of the estate, the spouse will receive the full amount only if it remains available after expenses of the estate are paid.

An unmarried partner can inherit if the deceased leaves behind a will, trust, or other vehicle that names the partner as a beneficiary. However, an unmarried partner is not entitled to inherit through intestate succession when there is no will, and will not be entitled to an elective share.

Further, if the deceased partner was legally married to someone else at the time of his or her death, the surviving spouse’s elective share will take precedence over the terms of the will. Under those circumstances, the unmarried partner may receive less than the deceased intended, or even nothing.

In Florida, a surviving spouse cannot be effectively disinherited. If the decedent does not leave behind a will or other provision for disposition of assets after his or her death, the Florida law of intestate succession directs all or part of the estate to the surviving spouse.

If the decedent has a will that leaves the spouse out, actively attempts to disinherit the spouse, or simply leaves the spouse less than the elective share under Florida law, the surviving spouse can simply opt for his or her elective share over the terms of the will.

Every state calculates the spouse’s elective share a bit differently. In Florida, the surviving spouse is entitled to 30% of the “elective estate.” However, determining exactly what is and is not included in the elective estate and the value of those assets can be complicated.

For example, homestead property is included in the elective estate. But, how that property is valued for purposes of calculating the surviving spouse’s share of the estate depends on the legal interest the spouse receives and other factors. And, property may be counted toward the surviving spouse’s elective share even if that property is not part of the deceased’s estate.

A local estate attorney who is experienced in handling elective share matters can be the best source of information about what is and is not included in the elective estate and how value will be determined.

Although wills and trusts are both tools people can use to pass property after death, they are entirely separate and one does not supersede the other. A will dictates how property belonging to the deceased will be distributed after his or her death. However, property that has been placed in trust is the property of the trust, not of the deceased.

A will and a trust may be used in combination. However, property that has been transferred into the trust and not transferred back out does not become part of the estate, and will be distributed according to the terms of the trust. Similarly, property that has not been transferred to the trust will pass through the deceased’s estate, whether under the terms of a will or intestate succession.

The executor of a will is legally bound to dispose of assets as the law requires and the will dictates. That means paying taxes, debts of the estate, and costs of administration, and then distributing the remainder of the estate to the designated beneficiaries. Occasionally, an executor may decide not to play by the rules, or may simply not be competent to manage the estate as required.

Florida law protects beneficiaries from executor misconduct in a variety of ways, from reporting requirements to a process for removal of an executor who is not fulfilling his or her responsibilities. A local estate planning attorney can help assess the situation and determine the best approach under your specific circumstances.

A will may be properly executed and still deemed invalid. One of the most common will challenges involves a claim that the testator lacked the capacity to make a will. This often arises with regard to elderly testators or those who were already suffering a final illness when the will was created.

Capacity is determined on a case-by-case basis—the simple fact that the testator is of advanced age, is seriously ill, or even has been diagnosed with a condition that could potentially impact mental functioning won’t necessarily lead to a determination that the will is invalid. Rather, the court will look at the specific circumstances at the time the will was executed, including any medical condition, the impact of medications the testator may have been taking, and other factors.

Will contests based on incapacity typically rely on witness testimony, of both medical professionals and of those who had the opportunity to observe the testator at and near the time the will was created and signed.

Will contests based on duress are relatively uncommon, both because the level of conduct that supports a duress claim is unusual and because it can be very difficult to establish that a testator acted under duress once he or she is deceased. Although there are exceptions, duress is most likely to occur when the testator is isolated with and dependent on a relative or other caregiver.

Some examples of duress include threats of physical harm if the testator does not execute the will and withholding of care, food, medicine and other necessities.

There are two types of fraud that may form the basis for a will contest: fraudulent inducement and fraud in execution.

Fraudulent inducement occurs when someone employs fraud to influence the testator’s decisions about how to dispose of his or her estate. Fraud occurs when:

• The person makes false representations of material fact to the testator
• He or she knows that the representations are false
• He or she intends that the testator will act on the false information
• Injury occurs as a result of the deception

In the context of a will contest, the injury is typically that the testator makes a decision that he or she would not have made with accurate information, shifting assets away from anticipated beneficiaries.

Fraud in the execution of a will is more straightforward than fraudulent inducement. The victim of fraudulent inducement knows what the will is and what it contains, but has made decisions based on falsehoods. When fraud is employed in the execution of a will, the testator may believe that he or she is signing something other than a will. Or, the testator may know that the document being executed is a will, but believe that it says something different than it does.

You may have heard that some wills are “self-proving.” While Florida law does allow for self-proving wills, the term is a bit misleading. A self-proving will is simply a will that is accompanied by an affidavit from the witnesses stating under oath that they signed the will as witnesses, and that they did so in the presence of one another and the testator.

A self-proving will can save time and effort, because in a straightforward, uncontested probate administration, the affidavit allows the personal representative to move forward without summoning one of the witnesses to establish that the will was properly and voluntarily executed. However, the affidavit—like any other testimony—can be challenged. In addition, some grounds for a will contest may not have been apparent to the witnesses.

So, while a self-proving will typically ease the burden of administration slightly, it does not render the will immune to contest.

A Florida will may be deemed invalid because it wasn’t properly executed. Some failures in form are straightforward: for example, the will may be signed by only one witness, or may not be signed by witnesses at all.

Often, however, the alleged flaw is less clear. For instance, a family member may claim that the testator’s signature was forged, or that the witnesses signed at separate times and places rather than in the presence of one another.

If a loved one has died and you believe that the will was not properly executed, it is in your best interest to contact an estate litigation attorney as soon as possible. A lawyer who is experienced in handling will contests can advise you as to the likelihood of a successful challenge, and can explain the process and the resources required to contest the will.

Similarly, if you are the executor of or a beneficiary to a will that is being contested, contact an attorney as soon as possible to learn more about how you can defend the will and protect your interests and those of other named beneficiaries.